Commission Implementing Regulation (EU) 2021/582 of 9 April 2021 imposing a provisional anti-dumping duty on imports of aluminium flat-rolled products originating in the People’s Republic of China

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 7(4) thereof,

After consulting the Member States,

Whereas:

(1) On 14 August 2020, the European Commission (‘the Commission’) initiated an anti-dumping investigation with regard to imports of aluminium flat-rolled products (‘AFRPs’ or ‘product concerned’) originating in the People’s Republic of China (‘the PRC’ or the ‘country concerned’) on the basis of Article 5 the basic Regulation. It published a Notice of Initiation in the Official Journal of the European Union (2) (‘the Notice of Initiation’).

(2) The Commission initiated the investigation following a complaint lodged on 30 June 2020 by European Aluminium (‘the complainant’) on behalf of producers of aluminium flat-rolled products. The complainant represents more than 25 % of the total Union production of aluminium flat-rolled products. Furthermore, as specified in the note on standing, the complaint was supported by producers accounting for over 80 % of the total non-captive Union production in the investigation period. The complaint contained evidence of dumping and of resulting material injury that was sufficient to justify the initiation of the investigation.

(4) Consequently, the Commission did not make imports of the product concerned subject to registration under Article 14(5a) of the basic Regulation, as the condition of Article 10(4)(d) of the basic Regulation, that is a further substantial rise in imports, was not met.

(5) In the Notice of Initiation, the Commission invited interested parties to contact it in order to participate in the investigation. In addition, it specifically informed the complainants, known Union producers, the known exporting producers and the authorities in the PRC, known importers and users as well as associations known to be concerned about the initiation of the investigation and invited them to participate.

(6) Interested parties had an opportunity to comment on the initiation of the investigation and to request a hearing with the Commission and/or the Hearing Officer in trade proceedings.

(7) Several parties requested a hearing with the Commission services. Parties who so requested were granted an opportunity to be heard.

(8) One user, Company A, requested anonymity in order to prevent possible retaliatory actions by some of the complainants, which were also its suppliers.

(9) European Aluminium commented that Company A had no standing in this proceeding as, according to European Aluminium, it had not made itself known or provided that there was an objective link between its activities and the like product as defined in Section 2.2 below. It also claimed that the confidentiality of Company A’s identity was not justified by the risk of retaliatory measures from within the EU on the grounds that Company A was located in the EU where European fundamental values apply and that European producers of the like product would not engage in such practice.

(10) The information on file (3) and the confidential information shared by Company A with the Commission, demonstrated that Company A registered as an interested party in due time and demonstrated an objective link between its activities and the product under investigation. As far as the grounds of the anonymity request are concerned, the Commission considered the company provided sufficient justification for its request. In particular, Company A provided duly documented information regarding fears of commercial retaliation due to the nature of its activities and its business relations with other parties active on the market in question. Consequently, the Commission granted anonymity to the company in question for the purposes of this investigation.

(11) Company A and Shanghai Huafon Aluminium Corporation (‘Huafon’), complained about the lack of reasoning pertaining to the exclusion of the products referred to in recital (57) and in the definition of the product under investigation of the Notice of Initiation.

(12) The basic Regulation provides that the complaint should include a complete description of the allegedly dumped product. It does not foresee any requirement for the complainant to provide reasoning with regard to the products that it does not wish to cover in its complaint. On this ground, this claim was rejected.

(13) Company A also claimed that, since the complaint was lodged by producers representing only 80 % of the Union production, it could be assumed that producers accounting for 20 % of the Union production did not suffer any material injury.

(14) The level of support for the initiation of an investigation is not indicative of the injury suffered by the Union industry. The legal requirements related to the initiation of an investigation are set out in Article 5 of the basic Regulation. The complaint contained sufficient evidence justifying the initiation of an investigation pursuant to Article 5(2). Furthermore, as recalled by Company A, the complaint was lodged and supported by Union producers accounting for 80 % of total non-captive Union production, which clearly represents a major proportion of the Union industry as required under Article 5(4). On these grounds, the Commission rejected the claim.

(15) The same user argued that certain indicators of the injury described in the complaint were based on products excluded from the scope of the investigation. However, as this claim was not sufficiently specific and in any case not supported by evidence, it was rejected.

(16) A user, Valeo Systèmes Thermiques SAS (‘Valeo’), claimed that the complainant had proceeded to a segmented injury analysis and that this analysis did not show injury for aluminium flat-rolled products destined for automotive heat exchangers (‘HEX AFRPs’) in view of the de minimis undercutting and underselling margins reported in the complaint. Valeo also referred to the financial statements of the main producer of this product category and indicated that it reported a good financial performance in 2019 and the first half of 2020 and did not list PRC imports as a risk.

(17) The Commission noted that the complaint did not contain a full injury analysis per segment but rather undercutting and underselling calculations for three representative product types, including automotive HEX AFRPs. As far as this product type is concerned, it did not contain all specific injury indicators. Rather, the complaint contained one set of all indicators relating to the like product as a whole but not an injury analysis per segment.

(18) As far as the main producer of automotive HEX AFRPs is concerned, the Commission observed that its product range is not limited exclusively to automotive HEX AFRPs but also includes Heating Ventilation Air Conditioning and Refrigeration (‘HVACR’) products. Moreover, the financial statements of that producer do not relate exclusively to its sales in the Union but rather to its activities worldwide, which explains why it does not single out the PRC as a risk. Consequently, these claims were rejected.

(19) Valeo and Company A asserted that the complaint did not provide evidence that the Union industry suffered material injury on the grounds that several indicators such as export sales, investments, capacity, stock, price and employment showed a positive trend.

(20) The Commission recalled that Article 5(2)(d) of the basic Regulation requires an examination, among others, of the relevant injury factors at initiation stage. Article 5 of the basic Regulation does not specifically require that all injury factors listed in Article 3(5) thereof show deterioration in order for material injury to be established. Indeed, the wording of Article 5(2) of the basic Regulation states that the complaint shall contain information on changes in the volume of the allegedly dumped imports, the effect of those imports on prices of the like product on the Union market and the consequent impact of the imports on the Union industry, as demonstrated by relevant (but not necessarily all) factors and indices having a bearing on the state of the Union industry, such as those listed in Articles 3(3) and 3(5) of the basic Regulation. In fact, the specific injury analysis of the complaint has shown that there is sufficient evidence pointing to a significant penetration of the EU market by Chinese imports made at prices which substantially undercut and undersell the Union industry’s own prices. The complaint contained evidence that this had a materially injurious impact upon the state of the Union industry over the period 2016 to the 2019, for example on the market share and profitability. Consequently, these claims were rejected.

(21) Another interested party, Nilo Asia PTE Ltd/Lodec Metall-Handel Niederlassung Bremen der O. Wilms GMBH (‘Nilo’), argued that the CN codes used for the undercutting and underselling calculations did not allow for the identification of the plates and common sheets and could lead to inaccuracies. It also contested the calculation method for the underselling calculation.

(22) As far as the method for underselling calculations is concerned, the Commission considered that the complainant had used objective data and methodology to establish the export price on an EU-landed basis. Moreover, the CN codes, as verified by the Commission, were correct at that stage of the proceeding. The Union target price was based on the complainant’s cost of production plus a target profit of 6 % in accordance with Article 7 of the basic Regulation. Consequently, the Commission determined that the complainant correctly established underselling and the claim was rejected.

(23) Nilo and an exporting producer Xiamen Xiashun Aluminium Foil Co., Ltd. (‘Xiamen Xiashun’) claimed that total EU consumption had been overestimated by the complainant. They referred to the European Aluminium Report 2019 (4) which referred to a consumption of 5,447 million tonnes.

(24) The Commission observed that the scope of this investigation is different from the report referred to. Indeed, as stated in the Notice of Initiation, several products were excluded from the product scope. Also, this report refers not only to the EU but also includes other countries members of EFTA such as Norway, Switzerland and Turkey. Because of these differences, this claim was rejected.

(25) An exporting producer, Xiamen Xiashun, contested the complainant’s statement that import prices from the PRC are consistently lower than the import price from other countries on the grounds that an analysis based on all covered CN codes was not accurate enough. It provided an analysis for CN code 7607 11 90 showing that Turkish prices were the lowest and accordingly that the injury suffered by the Union industry was due to imports from countries other than the PRC.

(26) The Commission pointed out that such an analysis is limited to one CN code and does not disqualify the complainant’s statement. As far as the overall analysis of imports during the period considered is concerned, reference is made to recitals (51) to (59). On this basis, this claim was rejected.

(27) Xiamen Xiashun also claimed that the complaint did not contain positive evidence on the existence of material injury by imports originating in the PRC and referred to flaws in the allegations on macro and micro indicators. This party contested the reliability and accuracy of the indicators in the complaint by referring to multiple isolated elements concerning different Union producers that allegedly affected the indicators. However, it did not demonstrate how these examples could question the Commission’s overall assessment that the complaint contained sufficient evidence justifying the initiation of this proceeding.

(28) Several interested parties claimed that automotive HEX AFRPs and foil stock needed to be excluded from the scope of the investigation or at least required a separate segment-specific analysis.

(29) At initiation stage, there was no indication that such segments needed to be analysed separately. In the course of the investigation, the Commission collected comments from interested parties about the product concerned, exclusion requests and the need for analysis by segments. Exclusion requests are analysed in recitals (61) to (105) while the supposed need for analysis by segments is examined in recitals (38) to (45).

(30) One importer, Nilo, questioned the methodology and CN codes used by the complainant in the dumping calculations relating to plates and common sheets and considered that this constituted a major flaw in the complaint.

(31) The Commission considered that the complainant had used objective data and methodology to establish the export price. Moreover, the CN codes, as verified by the Commission, were correct at that stage of the proceeding. Furthermore, as far as the dumping calculation was concerned, considering the level of the normal value established in the complaint for plates and common aluminium sheets, the conclusion with regard to the finding of dumping would have been identical, namely the resulting dumping margin would largely exceed de minimis threshold. Consequently, the claim was rejected.

(32) One of the sampled exporting producers, Xiamen Xiashun, submitted that the complaint contained insufficient evidence on dumping. According to the company, the aluminium ingot price was inflated and so was the normal value. It considered in particular that the 2019 average price of aluminium ingot used for the dumping calculations was USD 1 792 and not EUR 2 300 to EUR 2 700 per tonne, as indicated in the complaint. The company also considered that the consumption of 1-2 of aluminium ingots needed to produce 1 tonne of common aluminium sheet mentioned in the complaint was too high. Xiamen Xiashun further argued that the freight costs for common sheet of EUR 107,77 per tonne used in the dumping calculation in the complaint was too high, compared to its own transport costs for the same product (5).

(33) The Commission rejected these claims. The aluminium ingot price used by the complainant for the calculations was 1 797 EUR per tonne, and not EUR 2 300 to EUR 2 700 per tonne as argued by Xiamen Xiashun (6). Moreover, the Commission considered that both the consumption of aluminium ingots to produce 1 tonne of common sheet and the freight costs used by the complainant were supported by sufficient evidence. Even if it recalculated the normal value using the freight costs proposed by Xiamen Xiashun, the resulting dumping margin largely exceeded de minimis threshold. On this basis, the Commission considered that the complaint contained sufficient evidence on dumping to initiate the proceedings.

(34) In the Notice of Initiation, the Commission stated that it might sample the interested parties in accordance with Article 17 of the basic Regulation.

(35) In the Notice of Initiation, the Commission stated that it had provisionally selected a sample of Union producers. It selected the sample based on the volume of production and sales of the like product in the Union during the investigation period. The sample consisted of three Union producers. The sampled Union producers accounted for 35 % of the estimated total production and 35 % of the estimated total Union sales volume of the like product. The Commission invited interested parties to comment on the provisional sample. European Aluminium provided comments on behalf of two of its members selected to be in the sample. One provisionally sampled company requested that only one of its mills be included in the sample because this mill makes exactly the typical products imported from the PRC. It also claimed that the inclusion of only one mill would make the sample more representative. The Commission observed that the sampled companies consist of individual legal entities and that no distinction can be made on the basis of the internal organisation within the legal entity if all sub-entities belong to the same legal entity. Therefore, this request was rejected.

(36) Another sampled company claimed that the inclusion in the sample of only one legal entity within its group would render verification difficult since the IT and accounting system are maintained on a group basis. The Commission decided to limit itself to the legal entity in question in view of the limited time available. However, considering the sales channels of the products manufactured by this legal entity and the fact that the related companies may be involved in the sales flow, other entities within the group also had to fill in the relevant parts of the questionnaire.

(37) In light of the above, the sample was considered to be representative of the Union industry.

(38) To decide whether sampling was necessary and, if so, to select a sample, the Commission asked unrelated importers to provide the information specified in the Notice of Initiation.

(39) Four unrelated importers provided the requested information and agreed to be included in the sample. In accordance with Article 17(1) of the basic Regulation, the Commission selected a sample of three on the basis of the largest volume of imports. In accordance with Article 17(2) of the basic Regulation, all known importers concerned were consulted on the selection of the sample. No comments were made.

(40) In order to decide whether sampling was necessary and, if so, to select a sample, the Commission asked all known exporting producers in the PRC to provide information specified in the Notice of Initiation. In addition, the Commission asked the Mission of People’s Republic of China to the European Union to identify and/or contact other exporting producers, if any, that could be interested in participating in the investigation.

(41) Twenty-four exporting producers in the country concerned provided the requested information and agreed to be included in the sample. In accordance with Article 17(1) of the basic Regulation, the Commission selected a sample of three companies/groups of companies on the basis of the largest representative volume of exports to the Union that could reasonably be investigated within the time available. These companies/groups of companies represented 18,9 % of the estimated total exports. In accordance with Article 17(2) of the basic Regulation, all known exporting producers concerned and the authorities of the country concerned, were given the opportunity to comment on the selection of the sample.

(42) By letter of 27 August 2020, the company Yantai Jintai International Trade Co., Ltd (part of ‘Nanshan Group’), submitted its comments and requested to be part of the sample. By email of 2 September 2020, one of the selected companies, the company Tianjin Zhongwang Aluminium Co., informed the Commission that it stopped cooperation. On this basis, the Commission decided to replace the company Tianjin Zhongwang Aluminium Co. by the Nanshan Group. The modified sample also accounts for 18,9 % of the estimated total export volume to the Union from the People’s Republic of China in the investigation period. No comments on the modified sample were received.