Commission Implementing Regulation (EU) 2022/433 of 15 March 2022 imposing definitive countervailing duties on imports of stainless steel cold-rolled flat products originating in India and Indonesia and amending Implementing Regulation (EU) 2021/2012 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of stainless steel cold-rolled flat products originating in India and Indonesia

• (973) For the injury determination, the Commission distinguished between macroeconomic and microeconomic injury indicators. The Commission evaluated the macroeconomic indicators on the basis of data from the verified questionnaire reply of Eurofer relating to all Union producers, cross-checked where necessary with the questionnaire replies from the sampled Union producers. The Commission evaluated the microeconomic indicators on the basis of data contained in the cross-checked questionnaire replies of the sampled Union producers. Both sets of data were found to be representative of the economic situation of the Union industry.

• (974) The macroeconomic indicators are: production, production capacity, capacity utilisation, sales volume, market share, growth, employment, productivity, the magnitude of subsidy and recovery of past unfair trade practices.

• (975) The microeconomic indicators are: average unit prices, unit cost, labour costs, stocks, profitability, cash flow, investments and return on investments.

5.4.2.   Macroeconomic indicators

Production, production capacity and capacity utilisation

• (976) The total Union production, production capacity and capacity utilisation over the period considered developed as follows:

Table 7

Production, production capacity and capacity utilisation

	2017	2018	2019	IP
Total Union production (tonnes)	3 708 262	3 640 429	3 379 817	3 111 804
Index	100	98	91	84
Production capacity (tonnes)	4 405 623	4 517 379	4 530 146	4 572 365
Index	100	103	103	104
Capacity utilisation	84 %	81 %	75 %	68 %
Index	100	96	89	81
Source: Macro-economic questionnaire from Eurofer, questionnaires of sampled Union producers	Source: Macro-economic questionnaire from Eurofer, questionnaires of sampled Union producers	Source: Macro-economic questionnaire from Eurofer, questionnaires of sampled Union producers	Source: Macro-economic questionnaire from Eurofer, questionnaires of sampled Union producers	Source: Macro-economic questionnaire from Eurofer, questionnaires of sampled Union producers

• (977) Following final disclosure, the consortium of distributors and importers and one unrelated importer requested on the basis of which data the Commission came to the figures in Table 7 and claimed that the decrease in capacity utilisation is not linked to the imports from India and Indonesia, since the decrease was larger than the increase in imports from the countries concerned.

• (978) The data in Table 7 above is based on the cross-checked questionnaire replies of the sampled Union producers and, with regard to the other Union producers, on the basis of the verified macro-economic questionnaire of Eurofer. Eurofer provided data that it collected from its members and reasonable estimates for the remaining producers.

• (979) Indeed the decrease in production was larger than the increase in imports from the countries concerned. This is caused by a decrease in consumption, reflected in Table 4. As set out in section 6.2.3, the Commission concluded that this decrease in consumption did not break the causal link between the subsidised imports from India and Indonesia and the material injury suffered by the Union industry.

• (980) The consortium of distributors and importers and one unrelated importer requested to disclose the quantity imported by the Union producers from the countries concerned. The data available to the Commission showed that the sampled Union producers did not resell or further process any imports from the countries concerned.

• (981) The Union industry’s production volume decreased sharply by 16 % in the period considered. The reported capacity figures refer to actual capacity, which implies that adjustments considered as standard by the industry – for set-up time, maintenance, bottle necks and other normal stoppages – have been taken into account. After the imposition of anti-dumping measures on imports of SSCR from the People’s Republic of China (‘PRC’) and Taiwan in 2015 ²²², some Union producers initiated the modernisation of their production capacity. This modernisation has led to a slight production capacity increase of 4 % over the period considered.

• (982) As a result of decreased production and slightly increased capacity, capacity utilisation decreased by 19 % over the period considered and dropped below 70 % in the IP.

Sales volume and market share

• (983) The Union industry’s sales volume and market share developed over the period considered as follows:

Table 8

Sales volume and market share

	2017	2018	2019	IP
Union industry sales volumes (tonnes)	2 735 448	2 711 044	2 530 259	2 330 537
Index	100	99	92	85
Market share	70,6  %	72,9  %	73,5  %	72,7  %
Index	100	103	104	103
Source: Eurofer and Eurostat	Source: Eurofer and Eurostat	Source: Eurofer and Eurostat	Source: Eurofer and Eurostat	Source: Eurofer and Eurostat

• (984) The Union industry’s sales volume decreased by 15 % over the period concerned.

• (985) The Union industry managed however to maintain and even slightly increase its market share by 2,1 percentage points over the period considered as the decline in consumption was even larger than the decline in the Union industry’s sales volume, as Union sales partially replaced imports from other countries than the countries concerned.

• (986) Following final disclosure, the consortium of importers and distributors and one unrelated importer argued that the increase in market share of the Union industry indicated an absence of injury and that the increase of market share of the countries concerned did not negatively affect the market share of the Union industry. They claimed that the Commission was required to provide other positive evidence showing injury with regard to the other injury indicators.

• (987) As explained in recital (963), the slight increase in the market share of the Union industry during the period considered did not alter the fact that subsidised imports from the countries concerned did show an increase of around 55 % and were causing material injury to the Union industry. As set out in recitals (1006) and (1007), also the other injury indicators showed positive evidence that the Union industry suffered material injury in the investigation period. Therefore, the claim had to be rejected.

Growth

• (988) The above figures in respect of production and sales volume showed a clear decreasing trend over the period considered and demonstrated that the Union industry was not able to grow in absolute terms. A slight growth in relation to consumption was only possible because the Union industry chose to respond to the price pressure of the subsidised imports by lowering its sales prices.

Employment and productivity

• (989) Employment and productivity over the period considered developed as follows:

Table 9

Employment and productivity

	2017	2018	2019	IP
Number of employees	13 411	13 495	13 968	13 660
Index	100	101	104	102
Productivity (tonnes per staff)	277	270	242	228
Index	100	98	88	82
Source: Eurofer	Source: Eurofer	Source: Eurofer	Source: Eurofer	Source: Eurofer

• (990) The level of Union industry employment related to the production of SSCR increased by 4 % between 2017 and 2019 and showed a decrease of 2 percentage points between 2019 and the IP, resulting in an increase of 2 % over the period considered. In view of the sharp decrease in production, the productivity of the Union industry’s workforce, measured as tonnes per employee (in full time equivalent) produced per year, decreased significantly by 18 % over the period considered.

Magnitude of the subsidy margin and recovery from past unfair trade practices

• (991) All subsidy margins, excluding Jindal (Indonesia) as indicated above, were significantly above the de minimis level. The impact of these subsidy margins on the Union industry was not negligible, given the volume and prices of imports from the countries concerned.

• (992) Aside from the separate anti-dumping investigation into SSCR from the countries concerned ²²³, imports of SSCR have already been subject to an earlier anti-dumping investigation. The Commission found that the situation of the Union industry during 2013 was significantly affected by dumped imports from the PRC and Taiwan, resulting in the imposition of definitive anti-dumping measures on imports from these countries in October 2015 ²²⁴. These anti-dumping measures were extended in September 2021 ²²⁵. The Union industry’s situation was therefore unlikely to be more than marginally affected by the unfair trade practices throughout the period considered.

5.4.3.   Microeconomic indicators

Prices and factors affecting prices

• (993) The weighted average unit sales prices of the sampled Union producers to unrelated customers in the Union developed over the period considered as follows:

Table 10

Sales prices in the Union

	2017	2018	2019	IP
Average unit sales price (EUR/tonne)	2 252	2 312	2 206	2 175
Index	100	103	98	97
Unit cost of production (EUR/tonne)	1 958	2 064	2 019	2 013
Index	100	105	103	103
Source: Sampled Union producers	Source: Sampled Union producers	Source: Sampled Union producers	Source: Sampled Union producers	Source: Sampled Union producers

• (994) After showing a slight increase of 3 % from 2017 to 2018, average unit sales prices decreased by 6 % from 2018 to the IP, resulting in a decrease of 3 % over the period considered. Over the same period, the costs of production showed a simultaneous increase of 5 %, after which they stabilised at a cost level which was 3 % higher than at the start of the period considered. To a large extent the cost evolution was driven by important raw material price increases, such as nickel and ferrochromium. Due to the price suppression from the subsidised imports, the Union industry was not able to pass on this cost increase to its sales prices and was even forced to lower its sales prices.

Labour costs

• (995) The average labour costs of the sampled Union producers developed over the period considered as follows:

Table 11

Average labour costs per employee

	2017	2018	2019	IP
Average labour costs per FTE (EUR)	72 366	70 663	71 659	70 324
Index	100	98	99	97
Source: Sampled Union producers	Source: Sampled Union producers	Source: Sampled Union producers	Source: Sampled Union producers	Source: Sampled Union producers

• (996) The average labour costs per employee of the sampled Union producers fell by 3 % in the period considered. This shows that Union producers were able to lower labour costs as a reaction to the deteriorating market circumstances in an attempt to limit its injury.

Inventories

• (997) Stock levels of the sampled Union producers developed over the period considered as follows:

Table 12

Inventories

	2017	2018	2019	IP
Closing stocks (tonnes)	125 626	148 777	125 480	98 835
Index	100	118	100	79
Closing stocks as a percentage of production	5,54  %	6,53  %	6,09  %	5,13  %
Index	100	118	110	93
Source: Sampled Union producers	Source: Sampled Union producers	Source: Sampled Union producers	Source: Sampled Union producers	Source: Sampled Union producers

• (998) During the period considered the level of closing stocks decreased by 21 %. This trend followed the decrease in production volume. Most types of the like product are produced by the Union industry based on specific orders of the users. Therefore, stocks are not considered to be an important injury indicator for this industry. This is also confirmed by analysing the evolution of the closing stocks as a percentage of production. As can be seen above, this indicator fluctuated between 5 and 7 % of the production volume of the sampled Union producers over the period considered.

5.4.3.1.   Profitability, cash flow, investments and return on investments, and ability to raise capital

Table 13

Profitability, cash flow, investments, return on investments

	2017	2018	2019	IP
Profitability of sales in the Union to unrelated customers (% of sales turnover)	7,6  %	6,0  %	1,5  %	0,4  %
Index	100	79	19	6
Cash flow (EUR)	387 200 359	273 674 277	237 840 311	184 024 688
Index	100	71	61	48
Investments (EUR)	111 578 442	111 637 871	96 541 925	96 585 152
Index	100	100	87	87
Return on investments	20 %	15 %	6 %	4 %
Index	100	75	31	20
Source: Sampled Union producers	Source: Sampled Union producers	Source: Sampled Union producers	Source: Sampled Union producers	Source: Sampled Union producers

• (999) The Commission established the profitability of the sampled Union producers by expressing the pre-tax net profit of the sales of the like product to unrelated customers in the Union as a percentage of the turnover of those sales.

• (1000) Overall profitability fell from 7,6 % in 2017 to 0,4 % in the IP. As set out in section 5.3.3, this drop coincided with the increase of import volumes from the countries concerned and their market share at undercutting prices.

• (1001) All other financial indicators, i.e. cash flow, investments, and return on assets, clearly followed the same downward trend.

• (1002) The net cash flow is the ability of the Union producers to self-finance their activities. The cash flow showed a continuous decrease over the period considered, resulting in the IP at a level 52 % lower than the start of the investigation period.

• (1003) Investments are the net book value of assets. After staying stable from 2017 to 2018, a sharp drop of 13 percentage points can be seen from 2018 to 2019. The return on investments is the profit in percentage of the net book value of investments which reflects the level of depreciation of assets. It decreased continuously and significantly by 80 % over the period considered.

• (1004) The poor financial performance of the Union industry between 2017 and the investigation period limited its ability to raise capital. The Union industry is capital intensive and is characterised by substantial investments. The return on investment during the period considered is not sufficient to cover for such substantial investments.

5.5.   Conclusion on injury

• (1005) The investigation indicated that the Union industry could only respond to the price pressure of the subsidised imports from India and Indonesia by lowering its sales prices to maintain (and even slightly increase) its market share in the period considered. The effect of the subsidised imports caused price suppression, within the meaning of Article 8(2) of the basic Regulation, on the Union market during the investigation period. Prices of the Union industry decreased by 3 % during the period considered, while, under conditions of fair competition, they would have been expected to increase at a ratio comparable to rise of the cost of production, which increased by 3 %.

• (1006) The Union consumption decreased significantly during the period considered and both sales volumes and production volumes on the Union industry followed this trend. Production capacity increased marginally, caused by a positive outlook for the Union industry following the imposition of anti-dumping measures against imports of the product under investigation originating in the PRC and Taiwan in 2015.

• (1007) However, Union producers experienced a sharp decrease in productivity and capacity utilisation in the period considered. These deteriorating figures can only be explained to a small degree by the small increase in employment and capacity and were mainly caused by the decrease in Union consumption and the simultaneous increase in imports from the countries concerned.

• (1008) However, it is the financial indicators of the Union producers which fully showed the injury suffered. The Union industry experienced an increase in its costs of production in the period considered which, accompanied by a decrease in sales prices, resulted in a profitability drop from 7,6 % in 2017 to 0,4 % in the IP. A similar negative development can be seen in relation to the other financial indicators: investments (-13 %), return on investments (-80 %) and cash flow (-52 %).

• (1009) On the basis of the above, the Commission concluded that the Union industry suffered material injury within the meaning of Article 8(5) of the basic Regulation.

• (1010) The post-IP information available to the Commission further confirmed the same conclusion. Based on the analysis of data spontaneously submitted by the Union industry and covering the last two quarters of 2020, the Commission noted the following trends: increases in production, capacity, capacity utilisation and sales were marginal; prices continued to decrease significantly without any corresponding drop in the cost of production; the profitability of the sampled Union producers went further down and became negative, and also the cash flow, net investments, and return on investment showed a further negative trend compared to the period considered, as did employment; the market share of the Union industry slightly increased, but so did the market shares of the imports from the countries concerned.

• (1011) After final disclosure, the consortium of importers and distributors and one unrelated importer argued that the complaining companies had an increase in profits after the investigation period. While post-IP developments are not directly relevant, as shown in Annex 1 to this Regulation, the sampled Union producers became loss-making in the second half of 2020, contrary to the claim of the consortium and the unrelated importer. Therefore, the Commission had to reject this claim.

6. CAUSATION

• (1012) In accordance with Article 8(5) of the basic Regulation, the Commission examined whether the subsidised imports from the countries concerned caused material injury to the Union industry. In accordance with Article 8(6) of the basic Regulation, the Commission also examined whether other known factors could, at the same time, have injured the Union industry. The Commission ensured that any possible injury caused by factors other than the subsidised imports from the countries concerned was not attributed to the subsidised imports. These factors are: imports from third countries, a decrease in consumption, the export performance of the Union industry, an increase in the cost of raw materials, and the competitive price behaviour of the Union industry.

6.1.   Effects of the subsidised imports

• (1013) Imports from the countries concerned increased by more than 50 % in the period considered and their market share almost doubled. This increase in market share was at the detriment of imports from third countries. However, the low priced subsidised imports from the countries concerned created a price pressure on the Union industry. Prices of imports from India and Indonesia have been, during the period considered, between 5 and 19 % below prices of the Union industry. Due to these imports prices, the Union producers were not only unable to reflect raw material cost increases in their prices, they were even forced to decrease their sales prices in order to maintain their market share.

• (1014) As a result, the profitability of the Union producers, at a relatively high level in 2017, dropped down to almost zero in the IP, which had a further adverse effect on all the financial indicators of the companies in question.

• (1015) There is thus a strong causal link between the subsidised imports from India and Indonesia and the injury suffered by the Union industry.

6.2.   Effects of other factors

• (1016) Following final disclosure, the consortium of importers and distributors and one unrelated importer claimed that the financial indicators of the Union industry were not worsening due to dumped imports but due to the impact of the COVID-19 pandemic.

• (1017) The Commission found that the prices of imports from the countries concerned greatly influenced the prices of the Union industry and its financial indicators. As established in recital (965), the average import prices from both countries concerned were consistently lower than Union producers’ prices throughout the whole period considered, before the COVID-19 pandemic. The pandemic could potentially have affected the consumption on the Union market but such an impact could have only materialised in the last quarter of the IP (April-June 2020), while a substantial decline in consumption was already noted in 2019.

• (1018) Moreover, the Commission analysed the decrease in consumption (whether partially related to COVID-19 or not) as a potential other factor that could have caused injury in recitals (1028) to (1029) below and concluded that it did not attenuate the causal link between the subsidised imports from the countries concerned and the material injury suffered by the Union industry.

6.2.1.   Non-subsidised imports from Indonesia

• (1019) As set out in recital (933) above, subsidisation for one of the sampled Indonesian exporting producers, Jindal Indonesia, was found to be de minimis.

• (1020) The volume and price of these imports from Indonesia developed over the period considered as follows:

Table 14

		2017	2018	2019	IP
Indonesia	Volume (tonnes)	[20 000 – 21 000 ]	[22 000 – 23 000 ]	[21 000 – 22 000 ]	[19 000 – 20 000 ]
	Index	100	[109 – 111 ]	[107 - 109 ]	[97 - 98 ]
	Market share	[0,5 – 0,55 ] %	[0,6 – 0,63 ] %	[0,63 – 0,66 ] %	[0,6 – 0,63 ] %
	Index	100	[113 - 118 ]	[118 - 123 ]	[113 - 118 ]
	Average price (EUR/tonne)	[2 200 – 2 300 ]	[2 100 – 2 200 ]	[2 000 – 2 100 ]	[2 000 – 2 100 ]
	Index	100	[95 – 99 ]	[90 – 94 ]	[90 – 94 ]

• (1021) In the period considered, non-subsidised imports from Indonesia showed an increase in 2018 and 2019, but were in the IP at a slightly lower level than in 2017. The market share of these imports was very limited throughout the period considered at not more than 0,65 %. The sales price of these imports was at a higher level than the subsidised imports from Indonesia.

• (1022) Even though the imports from Jindal Indonesia were undercutting the prices of the Union industry, the company’s sales to the Union were slightly decreasing over the period considered and remained low. Therefore, the injury caused by these imports did not attenuate the causal link between the subsidised imports and the material injury suffered by the Union industry.

6.2.2.   Imports from third countries

• (1023) The volume and prices of imports from other third countries developed over the period considered as follows:

Table 15

Country		2017	2018	2019	IP
Taiwan	Volume (tonnes)	199 553	223 110	185 618	165 540
	Index	100	112	93	83
	Market share	5,2  %	6,0  %	5,4  %	5,2  %
	Index	100	116	105	100
	Average price (EUR/tonne)	1 668	1 749	1 684	1 655
	Index	100	105	101	99
Republic of Korea	Volume (tonnes)	147 696	165 812	160 947	164 882
	Index	100	112	109	112
	Market share	3,8  %	4,5  %	4,7  %	5,1  %
	Index	100	117	123	135
	Average price (EUR/tonne)	1 859	1 944	1 860	1 853
	Index	100	105	100	100
South Africa	Volume (tonnes)	98 063	88 913	94 567	81 537
	Index	100	91	96	83
	Market share	2,5  %	2,4  %	2,7  %	2,5  %
	Index	100	94	108	100
	Average price (EUR/tonne)	2 004	2 013	1 831	1 785
	Index	100	100	91	89
Other third countries	Volume (tonnes)	563 637	372 858	293 052	266 255
	Index	100	66	52	47
	Market share	14,6  %	10,0  %	8,5  %	8,3  %
	Index	100	69	58	57
	Average price (EUR/tonne)	2 051	2 345	2 319	2 407
	Index	100	114	113	117
Total of all third countries except the countries concerned	Volume (tonnes)	1 008 949	850 693	734 184	678 213
	Index	100	84	73	67
	Market share	26,1  %	22,9  %	21,3  %	21,1  %
	Index	100	88	82	81
	Average price (EUR/tonne)	1 942	2 076	1 995	2 014
	Index	100	107	103	104
Source: Eurostat	Source: Eurostat	Source: Eurostat	Source: Eurostat	Source: Eurostat	Source: Eurostat

• (1024) In the period considered, imports from third countries decreased significantly in terms of absolute volumes (by 33 %) and market share (from 26 % in 2017 to 21 % in the IP).

• (1025) As far as individual countries are concerned, only imports from Korea increased in the period considered, resulting in a slight increase in its market share (from 3,8 % to 5,1 %). Although prices of Korean imports are below those of the countries concerned, they are likely to be affected by the existence of transfer prices, as a result of the relationship between the Korean stainless steel manufacturer Samsung STS and the EU cold roller Otelinox in Romania. No conclusion can be drawn as to whether these imports also undercut the Union industry prices, also in view of the unknown product mix of these imports.

• (1026) As set out in recital (991) above, the imports from Taiwan are currently subject to an anti-dumping duty of 6,8 % ²²⁶ and imports from the PRC to a duty of 24,4 to 25,3 %.

• (1027) Imports from the PRC were very low throughout the period considered. Imports from Taiwan showed an increase of 12 % from 2017 to 2018, but decreased from 2018 to the IP with 26 %, keeping a market share of around 5 % during the period considered. The average price of imports from Taiwan were below the average prices of imports from the countries concerned. As the Commission did not receive any cooperation from the producers in Taiwan in the expiry review that was concluded in September 2021, it did not have any further details on Taiwanese import prices. Therefore, it cannot be excluded that these imports caused additional injury to the Union industry. However, even if imports from Taiwan contributed to injury caused to the Union industry, the imports from Taiwan decreased by 17 % over the period considered and could therefore not have been the cause of the increasing negative trends found in the injury analysis.

• (1028) The Commission therefore concluded that imports from other countries do not attenuate the causal link between subsidised Indian and Indonesian imports and material injury suffered by Union producers.

6.2.3.   Decrease in consumption

• (1029) A significant decrease in consumption during the period considered has had an adverse effect on some of the injury indicators, especially on sales and production volumes. However, as explained in recital (1004), the Union industry was suffering price injury rather than volume injury. Despite a shrinking market, the Union producers managed to slightly increase their market share through severe price competition with unfairly priced subsidised imports which resulted in the deterioration of the profitability and other financial indicators of the Union industry such as cash flow, investments, and return on investments.

• (1030) Therefore, the Commission concluded that the decrease in consumption did not attenuate the causal link between the subsidised imports from countries concerned and the material injury suffered by the Union industry.

6.2.4.   Export performance of the Union industry

• (1031) The volumes and prices of exports of the Union industry developed over the period considered as follows:

Table 16

	2017	2018	2019	IP
Export volume (tonnes)	450 587	450 687	410 840	374 378
Index	100	100	91	83
Average price (EUR/tonne)	2 369	2 524	2 428	2 394
Index	100	107	102	101
Source: Sampled Union producers, Eurofer	Source: Sampled Union producers, Eurofer	Source: Sampled Union producers, Eurofer	Source: Sampled Union producers, Eurofer	Source: Sampled Union producers, Eurofer

• (1032) Export sales of the Union producers decreased by 17 % in the period considered, mainly caused by measures imposed by the United States on the product under investigation and increased competition on third markets with Chinese sales and sales from the countries concerned. However, the volumes exported were limited as compared to the total Union sales volumes, representing around 13 % of its total sales volume, and average price of export sales was in the period considered constantly higher than prices on the Union market.

• (1033) On that basis, the Commission concluded that the impact of the export performance of the Union industry on the injury suffered was, if any, marginal.

6.2.5.   Impact of raw material prices

• (1034) One unrelated importer pointed at the issue of increasing costs of raw materials (nickel, ferrochrome) as a reason of the injurious situation of the Union industry.

• (1035) An increase in raw material prices is not per se a source of injury because it is generally accompanied by a subsequent price increase in selling prices. However, the decrease in the Union producers’ profitability and all their financial indicators is more than just a reflection of the increasing costs of production. Low-priced imports suppressed prices in the Union market and not only did not allow Union producers to increase prices to cover the increase in costs, but forced them to even lower their prices, to avoid an imminent loss of market share. This resulted in a steep decrease in their profitability figures, declining to break even during the investigation period.

• (1036) On that basis, it is concluded that the increase in prices of certain raw materials as such did not cause injury to the Union industry.

6.2.6.   Price behaviour of the Union producers

• (1037) The unrelated importer claimed that internal competition and price behaviour of the Union producers caused their deteriorating financial situation.

• (1038) However, the investigation did not confirm this claim. The imports from the countries concerned were consistently sold at prices undercutting the Union industry and thus the main reason why the Union producers are not able to raise their prices and cover their increasing costs is the price pressure from subsidised imports. Therefore, this claim was rejected.

6.3.   Conclusion on causation

• (1039) A causal link was established between the subsidised imports from India and Indonesia on the one hand and the injury suffered by the Union industry on the other hand. There was a coincidence in time between the increase in the volume of the subsidised imports from the countries concerned and the worsening of the Union's performance during the period considered. The Union industry had no other choice but to follow the price level set by the subsidised imports in order to avoid losing market share. This resulted in a situation where the Union industry made an unsustainable level of profit.

• (1040) The Commission has found that other factors that may have had an impact on the situation of the Union industry were: non-subsidised imports from Indonesia, imports from third countries, the decrease in consumption, and the export performance of the Union industry.

• (1041) The Commission distinguished and separated the effects of all known factors on the situation of the Union industry from the injurious effects of the subsidised imports. The effect of non-subsidised imports from Indonesia and from third countries, the decrease in consumption, and the export performance of the Union industry, on the Union industry's negative developments in terms of especially profitability and financial indicators was only limited.

• (1042) In light of the above considerations, the Commission established a causal link between the injury suffered by the Union industry and the subsidised imports from the countries concerned. The subsidised imports from the countries concerned have had a major determining impact on the material injury suffered by the Union industry. Other factors, individually or collectively, did not attenuate the causal link.

• (1043) As depicted in the Annex 1, trends in the second half of 2020 confirmed this analysis. Imports from the countries concerned continued to gain market shares, helped by prices which further dropped significantly, continuously undercutting the Union industry and suppressing the prices on the Union market. On the other hand, no other factors attenuate the causal link. While consumption continued to drop, price injury persisted. Imports from other third countries continued to drop, further losing market shares, and there were no indications that the situation of imports from Jindal (Indonesia) has changed. Exports by the Union industry increased only marginally. In sum, other factors, individually or collectively, did not attenuate the causal link in the second half of 2020.

7. UNION INTEREST

• (1044) In accordance with Article 31 of the basic Regulation, the Commission examined whether it could clearly conclude that it was not in the Union interest to adopt measures in this case, despite the determination of injurious subsidisation. The determination of the Union interest was based on an appreciation of all the various interests involved, including those of the Union industry, importers and users.

7.1.   Interest of the Union industry

• (1045) The Union industry consists of 13 producers located in several Member States and it employs directly 13 660 employees in relation to the product under investigation. None of the Union producers opposed the initiation of the investigation. As shown in section 5 above when analysing the injury indicators, the whole Union industry experienced a deterioration of its situation and was negatively affected by the subsidised imports.

• (1046) It is expected that the imposition of anti-subsidy duties will restore fair trading conditions on the Union market, end the price suppression and enable the Union industry to cover their increasing costs of production and improve their financial situation despite lost sales due to a shrinking market. This would result in an improvement of the Union industry's profitability towards levels considered necessary for this capital intensive industry. The Union industry has suffered material injury caused by subsidised imports from the countries concerned. It is recalled that a number of key injury indicators showed a negative trend during the period considered. In particular, indicators pertaining to the financial performance of Union producers were seriously affected. It is therefore important to restore prices to a non-subsidised level in order to allow all producers to operate on the Union market under fair trading conditions.

• (1047) It is therefore concluded that the imposition of anti-subsidy duties would be in the interest of the Union industry as it would allow it to recover from the effects of the injurious subsidisation found.

7.2.   Interest of unrelated importers and users

• (1048) One unrelated importer came forward. Furthermore, one Union producer that acted also as unrelated importer and end user submitted a questionnaire reply.

• (1049) The unrelated importer pointed out potential negative impacts of the anti-subsidy measures on competition on the Union market which in turn would result in lack of supply, worse service, increasing prices and a worse quality of material.

• (1050) Notwithstanding potential anti-subsidy measures, the Commission concluded that there will remain a healthy level of competition in the Union given that there are 13 Union producers of the product under investigation, some of them not taking part in the complaint. Furthermore, imports from third countries still account for more than 20 % of the market. Therefore, the potential negative impacts indicated by the importer are not likely to occur.

• (1051) Measures would also allow importers to pass-on prices to their customers and therefore the profitability of importers is not expected to be adversely affected. The product range and service quality is not expected to be reduced – to the contrary, protection against subsidised imports allows the Union industry to have new investments and improve its quality.

• (1052) Following final disclosure, the consortium of distributors and importers and one unrelated importer argued that the Commission did not take into account the situation of the steel market after the investigation period and claimed that the pandemic-related measures have resulted in a slowdown in scrap extraction, refining and collection activities, an increase in the prices of raw materials, and a shortage of raw materials. This has resulted in Europe being the highest priced market in the world for stainless steel products.

• (1053) They further stated that the imports from third countries are necessary for the Union market as the Union producers cannot meet actual demand on the Union market, causing significant problems in the steel supply.

• (1054) The increase in the prices of raw materials has affected production worldwide, and did affect both the Union industry and the imports. Furthermore, there are sources of supply of SSCR from other third countries, the biggest of them being Taiwan and Korea. Imports from Taiwan have still been entering the Union, having relatively low anti-dumping duties. Korea managed in the period considered to increase its export to the Union both in absolute and relative terms. South Africa also remains present on the Union market despite the alleged control of the European companies over its SSCR production. Moreover, the countervailing duties imposed on the countries concerned are not aimed at closing the Union market for the countries concerned, but are aimed at raising prices to a fair level. Therefore, the claims had to be rejected.

7.3.   Conclusion on Union interest

• (1055) On the basis of the above, the Commission concluded that there were no compelling reasons to conclude that the countervailing duties were of such magnitude as to lead to the conclusion that it was not in the Union interest to impose measures on imports of the product under investigation originating in the countries concerned.

8. DEFINITIVE COUNTERVAILING MEASURES

• (1056) In view of the conclusions reached with regard to subsidisation, injury, causation, and Union interest, and in accordance with Article 15 of the basic Regulation, a definitive countervailing duty should be imposed.

8.1.   Level of the definitive countervailing measures

• (1057) Article 15(1), third subparagraph of the basic Regulation provides that the amount of the definitive countervailing duty shall not exceed the amount of countervailable subsidies established.

• (1058) Article 15(1), fourth subparagraph states that ‘where the Commission, on the basis of all the information submitted, can clearly conclude that it is not in the Union’s interest to determine the amount of measures in accordance with the third subparagraph, the amount of the countervailing duty shall be less if such lesser duty would be adequate to remove the injury to the Union industry’.

• (1059) No such information has been submitted to the Commission, and therefore the level of the countervailing measures will be set with reference to Article 15(1), third subparagraph.

• (1060) On the basis of the above, the definitive countervailing duty rates, expressed on the CIF Union border price, customs duty unpaid, should be as follows:

Country	Company	Definitive countervailing duty
India	Jindal Stainless Limited	4,3  %
India	Jindal Stainless Hisar Limited	4,3  %
India	Chromeni Steels Private Limited	7,5  %
India	All other Indian companies	7,5  %
Indonesia	PT. Indonesia Ruipu Nickel and Chrome Alloy	21,4  %
Indonesia	PT. Jindal Stainless Indonesia	0 %
Indonesia	Non-sampled cooperating company	13,5  %
Indonesia	All other Indonesian companies	21,4  %

• (1061) The anti-subsidy investigation was carried out in parallel with a separate anti-dumping investigation concerning the same product concerned originating from India and Indonesia, in which the Commission imposed anti-dumping measures at the level of the dumping margin for the exporting producers in Indonesia and for one of the exporting producers in India. Only for Chromeni, was the dumping duty based on the lower injury margin. The Commission made sure that the imposition of a cumulated duty reflecting the level of subsidisation and the full level of dumping would not result in offsetting the effects of subsidisation twice (‘double-counting’) in accordance with Article 24(1) of the basic Regulation.

• (1062) In the case of both countries, the Commission considered whether some of the subsidy schemes are export contingent subsidies, which have the effect of reducing export prices and thus increase accordingly the dumping margins, in order to decide whether it needs to reduce the dumping margin by the subsidy amounts found in relation to export contingent subsidies in accordance with Article 24(1) of the basic Regulation.

• (1063) Since the Commission did countervail some export contingent subsidy schemes, in accordance with Article 24(1) of the basic Regulation and in order to avoid double counting, the Commission first imposed the definitive countervailing duty at the level of the established definitive amount of subsidisation. Then the Commission imposed the remaining definitive anti-dumping duty, which corresponds to the relevant dumping margin reduced by the amount of the export contingent subsidies and up to the relevant injury elimination level established in the separate anti-dumping investigation. Since the Commission reduced the dumping margin found with the entire amount of subsidisation related to export subsidies, there was no double counting issue within the meaning of Article 24(1) of the basic Regulation.

• (1064) Where the amount resulting from deducting the amount of export subsidisation from the dumping margin is higher than the injury margin, the Commission capped the anti-dumping duty at the injury margin. Where the amount resulting from deducting the amount of export subsidisation from the dumping margin is lower that the injury margin, the Commission set the level of the anti-dumping duty on the basis of the lower amount.

• (1065) A subsidy amount also had to be established for the sole cooperating non-sampled exporting producer in Indonesia. In view of the specific circumstances of the case, this could not be done according to the usual methodology, based on the weighted average amount of countervailing subsidies established for the cooperating exporting producers in the sample. Indeed, as mentioned in recitals (941) et seq. above, the final subsidy amount for Jindal Indonesia was below the de minimis amount. Since there was only one remaining exporting producer, the Commission decided to apply the duty rate of this exporting producer to the sole cooperating non-sampled exporting producer, with the exclusion of the scheme related to preferential financing, for which there was no evidence on file that the company in question could have benefited from it. Indeed, the company in question has no links with China, and could thus not have benefited from the preferential financing as provided to the IRNC Group.

• (1066) For India, given the high rate of cooperation of exporting producers in the countries concerned, the Commission found that the level of the highest duty imposed on the sampled companies would be representative as the ‘all other companies’ rate. The ‘all other companies’ duty will be applied to those companies, which did not cooperate in this investigation. For Indonesia, given the fact that the Commission only calculated a duty rate for one exporting producer, and in view of the fact that cooperating non-sampled exporting producers benefit from a lower rate, as explained in recital (1064) above, the Commission exceptionally decided to set the level of the duty for ‘all other companies’ at the level of the IRNC Group.

• (1067) On the basis of the above, the rates at which such duties will be imposed are set as follows:

Company	Dumping margin	Subsidy rate	Injury elimination level	Countervailing duty rate	Anti-dumping duty rate
India
Jindal Stainless Limited	13,9  %	4,3  %	25,2  %	4,3  %	10,0  %
Jindal Stainless Hisar Limited	13,9  %	4,3  %	25,2  %	4,3  %	10,0  %
Chromeni Steels Private Limited	45,1  %	7,5  %	35,3  %	7,5  %	35,3  %
All other Indian companies	45,1  %	7,5  %	35,3  %	7,5  %	35,3  %
Indonesia
PT. Indonesia Ruipu Nickel and Chrome Alloy	10,2  %	21,4  %	32,4  %	21,4  %	9,3  %
PT. Jindal Stainless Indonesia	20,2  %	0 %	33,1  %	0 %	20,2  %
Non-sampled cooperating company	20,2  %	13,5  %	33,1  %	13,5  %	19,3  %
All other Indonesian companies	20,2  %	21,4  %	33,1  %	21,4  %	19,3  %

• (1068) The individual company countervailing duty rate specified in this Regulation was established on the basis of the findings of the present investigation. Therefore, it reflects the situation found during the investigation with respect to the company concerned. This duty rate (as opposed to the countrywide duty applicable to ‘all other companies’) is thus exclusively applicable to imports of products originating in the country concerned and produced by the company mentioned. Imported products produced by any other company not specifically mentioned in the operative part of this Regulation, including entities related to those specifically mentioned, cannot benefit from these rates and shall be subject to the duty rate applicable to ‘all other companies’.

• (1069) A company may request the application of these individual duty rates if it changes subsequently the name of its entity. The request must be addressed to the Commission. The request must contain all the relevant information enabling to demonstrate that the change does not affect the right of the company to benefit from the duty rate, which applies to it. If the change of name of the company does not affect its right to benefit from the duty rate, which applies to it, a regulation informing about the change of name will be published in the Official Journal of the European Union.

8.2.   Special monitoring clause

• (1070) To minimise the risks of circumvention due to the difference in duty rates, special measures are needed to ensure the application of the individual countervailing duties. The companies with individual countervailing duties must present a valid commercial invoice to the customs authorities of the Member States. The invoice must conform to the requirements set out in Article 1(3) of this Regulation. Imports not accompanied by that invoice should be subject to the countervailing duty applicable to ‘all other companies’.

• (1071) While presentation of this invoice is necessary for the customs authorities of the Member States to apply the individual rates of countervailing duty to imports, it is not the only element to be taken into account by the customs authorities. Indeed, even if presented with an invoice meeting all the requirements set out in Article 1(3) of this Regulation, the customs authorities of Member States should carry out their usual checks and should, like in all other cases, require additional documents (shipping documents, etc.) for the purpose of verifying the accuracy of the particulars contained in the declaration and ensure that the subsequent application of the lower rate of duty is justified, in compliance with customs law.

• (1072) Should the exports by one of the companies benefiting from lower individual duty rates increase significantly in volume after the imposition of the measures concerned, such an increase in volume could be considered as constituting in itself a change in the pattern of trade due to the imposition of measures within the meaning of Article 23(1) of the basic Regulation. In such circumstances and provided the conditions are met an anti-circumvention investigation may be initiated. This investigation may, inter alia, examine the need for the removal of individual duty rate(s) and the consequent imposition of a countrywide duty.

• (1073) In order to ensure a proper enforcement of the countervailing duty, the duty level for all other companies should not only apply to the non-cooperating exporting producers, but also to those producers, which did not have any exports to the Union during the investigation period.

• (1074) The complainant, in its comments to the final disclosure, claimed that there is a risk of circumvention arising from the fact that the exporting producers are large corporate groups which rely on intra-group transactions and with presence in several third countries. Therefore, the complainant encouraged the Commission to be vigilant of the increase in exports of upstream materials and to be ready to initiate ex officio an anti-circumvention investigation. The intent to do so, according to the complainant, should be mentioned in this regulation.

• (1075) Jindal Group and Jindal Indonesia responded that there is no risk of circumvention because it will involve customs fraud, which is a crime. In addition, they clarified that the only processing of SSCR done outside of India and Indonesia occurs in Spain (at Iberjindal S.L.) and that, in any event, the product under investigation is subject to safeguard measures that apply to all imports.

• (1076) The Commission takes note of the parties’ comments and will, as always, be vigilant to act in line with its monitoring practice on measures in force.

9. FINAL PROVISIONS

• (1077) In view of Article 109 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council ²²⁷, when an amount is to be reimbursed following a judgment of the Court of Justice of the European Union, the interest to be paid should be the rate applied by the European Central Bank to its principal refinancing operations, as published in the C series of the Official Journal of the European Union on the first calendar day of each month.

• (1078) As explained in recitals (1060) and (1066), the Commission deducted from the dumping margin part of the subsidy amount in order to avoid double counting. Thus, should any modification or removal of the definitive countervailing duties occur, the level of anti-dumping duties should be automatically increased by the same proportion in order to reflect the actual extent of double counting as a result of this modification or removal. This change of the anti-dumping duties should take place as from the entry into force of this regulation.

• (1079) By Commission Implementing Regulation (EU) 2019/159 ²²⁸, the Commission imposed a safeguard measure with respect to certain steel products for a period of three years. By Commission Implementing Regulation (EU) 2021/1029 ²²⁹, the safeguard measure was prolonged until 30 June 2024. The product concerned is one of the product categories covered by the safeguard measure. Consequently, once the tariff quotas established under the safeguard measure are exceeded, the above-quota tariff duty, the anti-dumping duty and the countervailing duty would become payable on the same imports. As such cumulation of anti-dumping and countervailing measures with safeguard measures may lead to an effect on trade greater than desirable, the Commission decided to prevent the concurrent application of the anti-dumping and countervailing duty with the above-quota tariff duty for the product concerned for the duration of the imposition of the safeguard duty.

• (1080) This means that where the above-quota tariff duty referred to in Article 1(6) of Regulation (EU) 2019/159 becomes applicable to the product concerned and exceeds the level of the anti-dumping and countervailing duties pursuant to this Regulation, only the above-quota tariff duty referred to in Article 1(6) of Regulation (EU) 2019/159 shall be collected. During the period of concurrent application of the safeguard and anti-dumping and countervailing duties, the collection of the duties imposed pursuant to this Regulation shall be suspended. Where the above-quota tariff duty referred to in Article 1(6) of Regulation (EU) 2019/159 becomes applicable to the product concerned and is set at a level lower than the level of the anti-dumping and countervailing duties in this Regulation, the above-quota tariff duty referred to in Article 1(6) of Regulation (EU) 2019/159 shall be collected in addition to the difference between that duty and the higher of the level of the anti-dumping and countervailing duties imposed pursuant to this Regulation. The part of the amount of anti-dumping and countervailing duties not collected shall be suspended.

• (1081) The measures provided for in this Regulation are in accordance with the opinion of the Committee, established by Article 15(1) of Regulation (EU) 2016/1036 ²³⁰,

HAS ADOPTED THIS REGULATION:

Article 1

Country	Company	Definitive countervailing duty	TARIC additional code
India	Jindal Stainless Limited	4,3  %	C654
India	Jindal Stainless Hisar Limited	4,3  %	C655
India	Chromeni Steels Private Limited	7,5  %	C656
India	All other Indian companies	7,5  %	C999
Indonesia	PT. Indonesia Ruipu Nickel and Chrome Alloy	21,4  %	C657
Indonesia	PT. Jindal Stainless Indonesia	0 %	C658
Indonesia	Non-sampled cooperating company	13,5  %	See Annex 2
Indonesia	All other Indonesian companies	20,5  %	C999

Article 2

Implementing Regulation (EU) 2021/2012 is amended as follows:

• 1. Article 1(2) is replaced by the following:

‘2.   The rates of the definitive anti-dumping duty applicable to the net, free-at-Union-frontier price, before duty, of the product described in paragraph 1 and produced by the companies listed below shall be as follows:

Country	Company	Definitive anti-dumping duty	TARIC additional code
India	Jindal Stainless Limited	10,0  %	C654
India	Jindal Stainless Hisar Limited	10,0  %	C655
India	Chromeni Steels Private Limited	35,3  %	C656
India	All other Indian companies	35,3  %	C999
Indonesia	PT. Indonesia Ruipu Nickel and Chrome Alloy	9,3  %	C657
Indonesia	PT. Jindal Stainless Indonesia	20,2  %	C658
Indonesia	Other companies cooperating in the anti-subsidy case, but not in the anti-dumping case	19,3  %	See Annex 2
Indonesia	All other Indonesian companies	19,3  %	C999’

• 1. A new Article 1(6) is inserted:

‘6.   Should the definitive countervailing duties imposed by Article 1 of Commission Implementing Regulation (EU) 2022/433 be modified or removed, the duties specified in paragraph 2 shall be increased by the same proportion limited to the actual dumping margin found or the injury margin found as appropriate per company and from the entry into force of this Regulation.’

• 1. A new Article 1(7) is inserted:

‘7.   In cases where the countervailing duty has been subtracted from the anti-dumping duty for certain exporting producers, refund requests under Article 21 of Regulation (EU) 2016/1037 shall also trigger the assessment of the dumping margin for that exporting producer prevailing during the refund investigation period.’

Article 3

Article 4

This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 15 March 2022.

For the Commission

The President

Ursula VON DER LEYEN

http://www.cbic.gov.in/resources//htdocs-cbec/customs/cs-act/notifications/notfns-2017/cs-nt2017/csnt88-2017.pdf