Commission Implementing Regulation (EU) 2022/2247 of 15 November 2022 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of electrolytic chromium coated steel products originating in the People’s Republic of China and Brazil

• (116) Following provisional disclosure, the GOB claimed that in its assessment of the magnitude of the margin of dumping, the Commission simply restated conclusions already reached under other examinations. For instance, the conclusion that the margins of dumping are above the de minimis threshold is already expressed in recital (141) of the provisional Regulation related to the assessment of imports cumulation and can be derived from the application of provisional measures itself. Moreover, the analysis of the volume and price of the dumped imports was made under Articles 3.1, 3.2 and 3.5 of the Anti-dumping Agreement and is expressed in recitals (144) – (152) of the provisional Regulation. Therefore, no specific analysis regarding the magnitude of the margin of dumping was performed. Therefore, the GOB requested the Commission to analyse this factor in a non-redundant manner in relation to other indicators contained in Article 3 of the Anti-dumping Agreement.

• (117) In this respect, the Commission noted that consideration of the magnitude of the margin of dumping involves an examination of whether, having regard the volume and the price of the dumped imports, the impact on the Union industry cannot be considered negligible.

• (118) The Commission recalled that all dumping margins were significantly above the de minimis level. The volume of imports from the countries concerned was significant in the period considered and the investigation period, while the prices of the dumped imports have exerted price undercutting and price suppression on the prices of Union industry. Therefore, given the volume and the price of the dumped imports, the impact of the actual margins of dumping cannot be considered negligible and was even substantial, as concluded by the Commission in recital (168) of the provisional Regulation.

• (119) Therefore, recitals (168) and (169) of the provisional Regulation were confirmed.

4.4.3.   Microeconomic indicators

4.4.3.1.   Prices and factors affecting prices

• (120) In the absence of comments regarding prices and factors affecting prices, recitals (170) to (172) of the provisional Regulation were confirmed.

4.4.3.2.   Labour costs

• (121) In the absence of comments regarding labour costs, recitals (173) and (174) of the provisional Regulation were confirmed.

4.4.3.3.   Inventories

• (122) In the absence of comments regarding inventories, recitals (175) and (176) of the provisional Regulation were confirmed.

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

• (123) In the absence of comments regarding profitability, cash flow, investments, return on investments and ability to raise capital, recitals (177) to (182) of the provisional Regulation were confirmed.

4.4.4.   Conclusion on injury

• (124) Following provisional disclosure, CISA and Eviosys claimed that the Union industry did not suffer material injury and that any negative economic effects experienced by the Union industry were in fact due to other factors such as the impact of the COVID-19 pandemic. After final disclosure, CISA reiterated its claims.

• (125) First, CISA and Eviosys pointed to the fact that the market share held by the Union industry in fact increased during the period considered in the context of a decreasing Union consumption.

• (126) Second, concerning the macroeconomic indicators, CISA noted that none of them could possibly result in a finding of the Union industry being materially injured. It pointed out that the levels of production capacity and domestic sales have been constant, against a background of decreasing consumption, thus explaining the clear increase in market shares. Moreover, the Union industry has clearly been able to increase the number of persons employed, again pointing to the contrary of a materially injured status.

• (127) Third, in relation to the microeconomic indicators, CISA noted that the Union sales price did not decline between the period considered and the investigation period, and in the intermediate duration had only slightly fluctuated. Eviosys also pointed out that the Union industry’s sales prices remained overall stable and disagreed with the Commission’s conclusion that the Union industry ‘was not able to increase sales prices to cover the increased cost of production’ and that this was allegedly a result of ‘price pressure by imports’. In this respect, Eviosys claimed that the decreasing demand during the period considered combined with the effects of the COVID-19 pandemic prevented the Union industry from increasing its sales prices.

• (128) Fourth, CISA pointed to the fluctuation in the profitability figures in spite of the fact that the market share of the Union industry had increased. In this regard, CISA questioned the Union industry’s decision to continue significant investments, despite the fact that the Union consumption was clearly not increasing and requested the Commission to clarify the precise legal requirements under which the Union industry must make investments and to ensure their relevance in view of the product concerned. CISA also noted that the increased production costs have no link at all to exports from China, and as a result, this should be treated as a causality-breaking factor by the Commission.

• (129) Furthermore, CISA claimed that in contrast to the profitability levels reported in the provisional Regulation, the relevant market outlooks are generally regarded as highly positive. CISA made reference to certain articles ²⁰ and pointed out that the three sampled producers (two of which belong to the same group) are all explicitly referenced in these articles, indicating that Arcelor Mittal increased its sales by 44 % last year, and that ThyssenKrupp increased its quarter revenue by 39 % year-on-year in December 2021.

• (130) After final disclosure, CISA reiterated its claim that the Commission should assess the alleged high profitability achieved by Arcelor Mittal and ThyssenKrupp after the investigation period. Furthermore, CISA as well as CANPACK argued that the import prices from China and Brazil have increased significantly after the investigation period and that this should be taken into account by the Commission.

• (131) The Commission disagreed with these claims. As stated in recital (183) of the provisional Regulation, economic indicators at both macro and micro level deteriorated during the period considered. Although the Union industry sales volume remained overall stable and it gained some market share in the period considered the financial situation of the Union industry deteriorated mainly due to the increased cost of production, which could not be covered by a corresponding increase of its sales prices. The significant price suppression exercised by the dumped imports led to losses as from 2019, which further increased in the investigation period. Although the number of employees increased during the period considered, this increase mainly occurred in 2019 and 2020. During the investigation period, the Union industry was laying off employees.

• (132) As set out in recital (187) of the provisional Regulation, profitability, cash flow and return on investment deteriorated significantly during the period considered. This negatively affected the ability of the Union industry to self-finance operations, to make necessary investments and to raise capital, thus impeding its growth and even threatening its survival.

• (133) As far as investments made to comply with legal requirements are concerned, the Commission pointed out that these investments relate to environmental and social obligations and are not linked to any production capacity increase.

• (134) The market outlooks, price developments of imports as well as the alleged profitability of the Union producers achieved after the end of the investigation period referred to by CISA and CANPACK are irrelevant for the assessment of the injury suffered by the Union industry during the investigation period.

• (135) Following final disclosure, CISA made a link between the increase in the number of employees and Commission’s explanation that the investments made related to environmental and social standards, arguing that such investments would not require an increase in employees. It further requested the Commission to elaborate on the precise scope and amounts of the investment undertaken by the industry that were needed to comply with environmental and social obligations.

• (136) The Commission did not make a link between the increase in employment and the investments made. Indeed, as pointed out in recital (131) above, employment increased mainly in 2019 and 2020, while it decreased by 8,9 % between 2020 and the investigation period. At the same time investments continued to increase during the investigation period. The Commission also pointed out that it was unable to disclose the precise scope and amount of investments made by the sampled companies since this is confidential information. However, as already indicated in recital (133) above, those investments were not linked to any production capacity increase but rather to adapting and/or replacing already existing capacities.

• (137) Therefore, the Commission concluded that the Union industry suffered material injury within the meaning of Article 3(5) of the basic Regulation. Consequently, the Commission rejected the claims of interested parties concerning the absence of material injury and confirmed recitals (183) to (188) of the provisional Regulation.

• (138) The claims on other factors causing injury are addressed in Section 5 below.

5. CAUSATION

5.1.   Effects of the dumped imports

5.1.1.   Volume and market share of the dumped imports from the countries concerned

• (139) Following provisional disclosure, CISA argued that the levels of market shares held by the countries concerned, which never exceeded 18 %, and subsequently decreased in the investigation period, cannot be considered as excessively high.

• (140) The Commission disagreed with this claim. As explained in recital (192) of the provisional Regulation, the market share of the imports from the countries concerned increased from 13,1 % in 2018 to 15,4 % in the investigation period. The Commission considered such a market share to be significant and, in light with the price levels established, able to have an impact on the Union industry within the meaning of Article 3(2) of the basic Regulation. Therefore, the Commission rejected the claim and confirmed recitals (190) to (192) of the provisional Regulation.

5.1.2.   Price of the dumped imports from the countries concerned and price effects

• (141) Following provisional disclosure, Eviosys claimed that there is no evidence of any price pressure by the imports from the countries concerned and that the prices of the Union producers do not seem to have followed Chinese or Brazilian prices, which suggests that they were unaffected by the latter.

• (142) As explained in recital (193) of the provisional Regulation, the average import price of the imports from the countries concerned were significantly below the average sales prices of the Union industry in the Union market and these imports undercut the Union industry’s prices on weighted average by 11,2 %. The significant import volumes at low prices depressed the Union industry’s prices, which could not cover the costs of production, thereby incurring losses.

• (143) Moreover, irrespective of whether the prices of the Union industry have followed or not the Chinese and Brazilian prices, it is clear that the imports from the countries concerned at low prices suppressed the Union industry prices and thus had a negative price effect. The existence of price suppression is sufficient in the context of the price effects analysis under Article 3(3) of the basic Regulation to conclude that there was a significant negative impact on the Union prices by the dumped import prices. Consequently, the claim was rejected and recital (193) of the provisional Regulation confirmed.

5.1.3.   Causal link between the dumped imports from the countries concerned and the material injury of the Union industry

• (144) Following provisional disclosure, Eviosys repeated its claim that any injury could not have been caused by the imports from the countries concerned and reiterated that there is very little competitive relationship between the products sold by the Union industry and the imports from the countries concerned because of factors such as lower quality level and non-suitability for certain uses, longer lead times and higher transport costs as well as limited customer support, which also explains the different prices and the fact that they are generally lower than the Union industry’s sales prices.

• (145) However, Eviosys failed to provide new evidence to substantiate its claims. Therefore, recitals (194) to (197) of the provisional Regulation are confirmed.

5.2.   Effects of other factors

5.2.1.   Imports from third countries

• (146) Following provisional disclosure, the GOB observed that the non-injurious price calculated in the preliminary determination is EUR/tonne [850-990]. Considering that this value is higher than the import price of imports from non-investigated origins (EUR/tonne 822) and that the volume of imports from non-investigated origins is higher the one originating from Brazil and China, the Commission should recognize the implications in the assessment of the imports from non-investigated origins as a possible other injury factor. Thus, their injurious effects shall be separated and distinguished from the ones arising from the alleged dumped imports.

• (147) As stated in recital (199) of the provisional Regulation, the volume of imports from other third countries and their market share decreased during the period considered by 23 % and 21 %, respectively, and their average import price remained close to the average sales price of the Union industry, and were significantly higher than the average import price of imports from the countries concerned. In that context, it was clear that any material injury suffered by the Union industry was being caused by imports from the product concerned, which were keeping price levels down. Although it cannot be excluded that the other import sources would, once duties on the imports of the product concerned have been imposed, be a cause of injury to the Union industry, they were clearly not a cause capable of attenuating the causal link between the dumped imports and the material injury observed during the investigation period.

• (148) Furthermore, with respect to the average non-injurious price, this was calculated on the basis of a specific product mix based on the actual exports of the sampled exporting producers and compared with the landed price of the imports from those exporting producers. As such, it was not directly comparable to the average CIF import prices.

• (149) Therefore, the claim was rejected and recitals (198) to (201) of the provisional Regulation are confirmed.

5.2.2.   The COVID-19 pandemic

• (150) Following provisional disclosure, CISA, Eviosys and CANPACK claimed that the COVID-19 pandemic and its economic consequences break the causal link between imports and the state of the Union industry. CISA argued that the COVID-19 pandemic is mostly a demand side-crisis and not one of increased imports injuring an industry, with the main result being the suspension of production and consequently a recession on the Union market.

• (151) The GOB referred to recitals (203) to (205) of the provisional Regulation and argued that the Commission seemed to minimize the effects of the COVID-19 pandemic on the Union industry on the grounds that ‘the deterioration of the situation of the Union industry had already started before the pandemic and continued after the production of the Union industry resumed in the IP’. The GOB is of the opinion that this argument is not a sufficient reason for mitigating the effects of the COVID-19 pandemic, since the afore-mentioned pandemic may have had negative effects of the Union industry simultaneously with the alleged dumped imports.

• (152) In this respect, the Commission referred to recital (203) of the provisional Regulation, where it has acknowledged that the COVID-19 pandemic had a negative impact on the Union industry, especially in 2020 when production sites of the Union industry had to close temporarily and that it is possible that the COVID-19 pandemic might have contributed to the injury suffered by the Union industry. However, the Commission insisted on the fact that the deterioration of the financial situation of the Union industry had already started before the pandemic and continued during the post-COVID-19 recovery period, including in the investigation period. Therefore, the negative impact of the COVID-19 pandemic could not be considered as the main cause of the injury suffered by the Union industry to the extent that it would have attenuated the causal link between such injury and the dumped imports from the countries concerned. Consequently, the Commission rejected these claims.

5.2.3.   The evolution of the cost of production

• (153) In the absence of comments regarding the evolution of the cost of production following provisional disclosure, recitals (206) to (209) of the provisional Regulation are confirmed.

5.2.4.   Export performance of the Union industry

• (154) Following provisional disclosure, CISA pointed out that the exports of the Union industry were significant, amounting to 22 % in the investigation period. It further referred to Table 14 of the provisional Regulation showing that the export volume of the Union industry dropped by 7 percentage points and that export prices dropped by 6 percentage points. CISA claimed that the negative development relating to export sales had significant impact on the overall Union industry’s economic performance.

• (155) CANPACK disagreed with the Commission’s conclusion that export performance of the Union industry was not enough to attenuate the casual link as Table 14 in the provisional Regulation shows clearly that the sales price of Union producers to countries outside the Union was at a similar level as the prices of the ECCS originating in China. CANPACK considered that the argument of the Union producers that the reason for selling outside the Union was that the Union industry is not able to sell it within the Union market, while there was high demand of Union users for ECCS, was not convincing.

• (156) The GOB estimated that given that the volume of exports of the Union industry is higher than the alleged dumped imports, the export performance could not be considered as a minor factor.

• (157) Regarding the export performance of the Union industry, the export volume first increased in 2019 and 2020 before it decreased in the investigation period, while the average export prices decreased as from 2020. This evolution corresponded to a slight increase of the Union sales of the Union industry between 2020 and the investigation period. The slight decrease of the export performance of the Union industry therefore does not appear to have a strong impact on the overall economic performance of the Union industry, which deteriorated to a higher extent during the same period of time. Moreover, the negative profitability figures in Table 12 of the provisional Regulation are based only on EU sales, and are thus not the result of any potential export losses. Therefore, the Commission confirmed its conclusion in recital (213) of the provisional Regulation that although the decline in export performance could have contributed to the injury suffered by the Union industry, it is not enough to attenuate the causal link between the dumped imports from the countries concerned and the injury suffered by the Union industry considering the high share of Union sales compared to export sales. Consequently, the Commission rejected the claims of interested parties in this respect.

5.2.5.   Effect of yearly contracts

• (158) Following provisional disclosure, CANPACK disagreed with the argument that effect of long-term (yearly) contracts between the Union suppliers and their Union customers on the injury of Union industry found is limited and cannot attenuate the casual link. According to CANPACK, as indicated in recital (214) of the provisional Regulation, sales of the Union industry are based on yearly contracts that fix the quantities and prices for the following year, and give the Union producers minimal (if any) margin to increase sales prices in the context of increasing raw materials prices during the application of the yearly contract. Union producers base their offers on the estimated prices of raw materials and production costs for the next year, considering the risk of changes (in practice negotiations of the prices for the next year take place in Q4 of the previous year).

• (159) In this respect, the Commission referred to recital (208) of the provisional Regulation, where it was noted that the Union industry was unable to increase its sales prices during the entire period considered, which covers more than 3 years. Since this pattern was observed during a long period of time, it could not be explained only by the increase of raw materials cost and the effect of the yearly contracts in terms of fixed prices.

• (160) Therefore, the Commission rejected the claim and confirmed recitals (214) and (215) of the provisional Regulation.

5.2.6.   Consumption

• (161) Following provisional disclosure, CISA and Eviosys pointed to the consumption decrease as a relevant factor when considering causality. After final disclosure, CISA reiterated its claim arguing that the decrease in consumption could break the causal link found between the dumped imports and the injury found. However, they did not substantiate their claims. Therefore, these claims were rejected.

• (162) The GOB disagreed with the conclusion of the Commission in recital (218) of the provisional Regulation that the contraction of the market demand by 3 % could not be considered as a cause of injury attenuating the causal link between the dumped imports and the injury found. According to the GOB, market decrease also has the ability to affect the domestic industry production volume and fixed costs and it should be analysed jointly with other factors resulting in the same effects.

• (163) In this respect, the Commission concluded in recital (217) of the provisional Regulation that despite the contraction of the market by 3 %, Union sales figures remained constant, which indicated that the injury suffered by the Union industry was not caused by a loss of volumes due to falling demand, but rather by the price suppression exerted by the imports from the countries concerned. Therefore, the Commission rejected the claim and confirmed recitals (216) to (218) of the provisional Regulation.

5.3.   Conclusion on causation

• (164) The volume of imports from the countries concerned and their market share increased during the period considered, while their prices decreased. This coincided in time with the deterioration of the economic situation of the Union industry. Therefore, the Commission confirmed that there is a clear causal link between these imports and the injury of the Union industry.

• (165) Following provisional disclosure, the GOB argued that the Commission did not properly separate and distinguish the effects of the export performance of the Union industry, the Union consumption decrease and the effects of the COVID-19 pandemic from the effects stemming from the dumped imports and made reference to the Appellate Body ruling in US – Hot-Rolled Steel (para. 226).

• (166) The GOB requested the Commission to reassess these three factors, preferably on a cumulative basis, with regard to their consequences to the Union industry output and fixed costs and to separate and distinguish those effects from the ones arising from the alleged dumped imports.

• (167) Eviosys claimed that the Union industry could not increase its sales prices during the period considered, although it faced increasing production cost, because of the decreasing demand and the COVID-19 pandemic. Eviosys considered that the Commission should assess more carefully the impact of other factors on the Union industry’s economic situation.

• (168) CANPACK also considered that the Commission has underestimated the impact of other factors. In particular, they disagreed that the impact of the COVID-19 pandemic and the lack of raw materials on the Union market was not sufficient to attenuate the causal link between the dumped imports from the countries concerned and the material injury suffered by the Union industry.

• (169) After final disclosure, CISA also argued that the Commission did not sufficiently address the effects caused by the COVID-19 pandemic while the entire investigation period was set during the most economically significant impact of this pandemic. Furthermore, CISA claimed that the investments made by the sampled Union producers singlehandedly explained the decreased profitability and the resulting state of the domestic industry.

• (170) In this respect, the Commission confirmed, as stated in recital (220) of the provisional Regulation, that it has distinguished and separated the effects of all known factors on the situation of the Union industry from the injurious effects of the dumped imports.

• (171) As far as investments are concerned, the Commission observed that the company that had the highest amounts of investments had the best performance among the sampled companies. Therefore, there was no direct link between the profitability of the Union industry and the investments made during the investigation period. Rather, investments were necessary and legally required and, together with the full costs, should have been possible to be financed by reasonable profits in accordance with Article 7(2c) of the basic Regulation, in the absence of the dumped imports. Consequently, this claim was rejected.

• (172) The Commission assessed the impact of other factors taking into account the comments of interested parties and concluded that those factors did not attenuate the causal link. Indeed, factors such as the COVD-19 pandemic or the yearly sales contracts with fixed prices for the entire year together with the decreasing demand of ECCS during the period considered, might have had an impact on the performance of the Union industry. However, these factors did not explain the price suppression suffered by the Union industry during the entire period considered and, in particular, during the investigation period.

• (173) The deterioration of the economic situation of the Union industry started before the COVID-19 pandemic and the disruption of the raw material supply. Furthermore, in a normal competitive environment, the Union industry should be able to increase its sales prices following the increase of input materials cost; therefore, the effect of the yearly contracts could not explain the fact that the Union industry was unable to increase its sales prices for the entire period considered in order to remain profitable.

• (174) Therefore, the Commission confirmed the conclusion in recitals (219) to (221) of the provisional Regulation.

6. LEVEL OF MEASURES

6.1.   Underselling margin calculation

• (175) Following provisional disclosure, CISA commented that, according to its understanding, the adjustment linked to future environmental costs did not take into account any existing and future compensations to the Union industry to offset increases in electricity prices. In this respect, the Commission confirmed that such compensations have not been taken into account in the calculation of the future environmental costs.

• (176) Following provisional disclosure, CSN submitted that the additional future cost of EUR/tonne [10-20] mentioned in recital (228) of the provisional Regulation, which is added to the non-injurious price, was arbitrary, speculative and distorted the price comparability between Union and Brazilian sales. CSN underlined that within the EU-Mercosur Agreement, Brazil made strong commitments regarding sustainable development, in particular regarding multilateral labour standards and agreements, multilateral environmental agreements, and trade and climate change. According to CSN, the Commission is offering to Union producers a protection in excess of what is necessary to remove injurious dumping and requested the Commission not to add an additional future cost with respect to Brazil.

• (177) The GOB argued before and after final disclosure that costs associated with compliance with other international agreements (such as the Paris Agreement and the ones signed under the auspices of the International Labour Organization) were included in the non-injurious price, although they do not reflect the effects of the dumped imports in any way. In addition, the GOB argued that the profit margin used for constructing the non-injurious price of 6 % was never achieved during the period of injury analysis, thus, by using a profit margin of 6 % for constructing the non-injurious price the Commission will more than offset the injurious effects of the alleged dumping imports, deviating from the purpose set out in paragraph 2 of Article VI of GATT 1994. Therefore, the GOB requested the Commission to remove the additional costs from the non-injurious price.

• (178) In this respect, the Commission pointed out that future costs were taken into account under Article 7(2d) of the basic Regulation, irrespective of the situation and implementation of environmental and labour standards in a third country, and/or of bilateral and/or multilateral agreements to which the respective countries are parties. The Commission applied the basic Regulation, which focuses exclusively on the cost of production of the Union industry, including, inter alia, possible future costs resulting from Agreements and Conventions referred to in that provision. This provision does not require that these future costs reflect the effects of the dumped imports. The request to assess the implementation by Brazil of similar international agreements or the EU-Mercosur Agreement (which is yet to enter into force), is irrelevant in this context. Consequently, the Commission rejected the claim of the GOB.

• (179) Therefore, the Commission confirmed recitals (228) to (232) of the provisional Regulation.

• (180) For the purpose of establishing the underselling margin, in order to address the comments of Baosteel regarding possible asymmetry, the Commission used the constructed export price for Baosteel established pursuant to Article 2(9) of the basic Regulation, applied by analogy, and compared it with a target price of the Union industry which did not include the SG&A of the related sales entities of Arcelor Mittal. The target price thus established was used in the underselling calculations for all exporting producers. Consequently, no costs of the related selling entities of the Union producers were taken into account and, as a result, there was no longer any asymmetry. The approach of not taking into account costs of the related selling entities of the Union producers was recently confirmed by the General Court ²¹.

• (181) Following the same approach as in recital (234) of the provisional Regulation, the Commission then determined the underselling margin on the basis of a comparison of the weighted average import price of the sampled cooperating exporting producers in the countries concerned with the weighted average non-injurious price of the like product sold by the sampled Union producers in the Union market during the investigation period. Any difference resulting from this comparison was expressed as a percentage of the weighted average import CIF value. For other cooperating companies in the PRC that were not sampled, the Commission used the weighted average margins of the two sampled exporting producers.

• (182) As provided for in Article 9(4), third subparagraph, of the basic Regulation, and given that the Commission did not register imports during the period of pre-disclosure, it analysed the development of import volumes to establish if there had been a further substantial rise in imports subject to the investigation during the four weeks period of pre-disclosure described in recital (7), and therefore whether it was necessary to reflect the additional injury resulting from such an increase in the determination of the underselling margin.

• (183) Based on data from the Surveillance 2 database, import volumes from the countries concerned during the period of pre-disclosure were 58 % higher than the average import volumes in the investigation period on a four-week basis. On that basis, the Commission concluded that there had been a substantial rise in imports subject to the investigation during the period of pre-disclosure.

• (184) To reflect the additional injury caused by the increase of imports, the Commission decided to adjust the injury elimination level based on the rise in import volume, which is considered the relevant weighting factor based on the provisions of Article 9(4) of the basic Regulation. It therefore calculated a multiplying factor established by dividing the sum of the volume of imports during the four weeks of the pre-disclosure period of 10 109 tonnes and the 52 weeks of the investigation period by the import volume in the investigation period extrapolated to 56 weeks. The resulting figure of 4,1 % reflects the additional injury caused by the further increase of imports. The definitive injury margins were thus multiplied by this factor.

• (185) Therefore, the definitive underselling margin for the cooperating exporting producers and all other companies is as follows:

Country	Company	Definitive dumping margin (%)	Definitive underselling margin (%)
The People’s Republic of China	Baoshan Iron & Steel Co., Ltd.	30,7	33,9
The People’s Republic of China	Handan Jintai Packing Material Co., Ltd.	53,9	23,9
The People’s Republic of China	Other cooperating companies: GDH Zhongyue (Zhongshan) Tinplate Industry Co., Ltd.; Shougang Jingtang United Iron & Steel Co., Ltd.	34,6	32,2
The People’s Republic of China	All other companies	77,9	77,9
Brazil	Companhia Siderúrgica Nacional	66,8	53,2
Brazil	All other companies	66,8	53,2

6.2.   Examination of the margin adequate to remove injury to the Union industry in relation to the PRC

• (186) Following provisional disclosure, Jintai commented regarding the application of Article 7(2a) of the basic Regulation. It contested the existence of a distortion (VAT rebate withdrawal), the causality between this distortion and the prices on the Chinese market, as well as the appropriateness of Brazilian prices to be used as international benchmarks.

• (187) First, the existence of a distortion concerning the VAT rebate withdrawal was established for hot rolled coils or ‘HRC’ (CN code 7208 27) and this distortion occurred during the full investigation period. This information is available in the document ‘Customs Import and Export Tariff of the People’s Republic of China’. A VAT refund reduction or withdrawal is one of the situations specifically listed in Article 7(2a) of the basic Regulation giving rise to raw material distortions.

• (188) Second, the Commission recalled that in accordance with Article 7(2a) of the basic Regulation, it is sufficient to establish the existence of a distortion (here the VAT rebate withdrawal) and that the domestic Chinese raw material prices are lower as compared to prices in representative international markets. This provision contains no legal obligation to prove the causality between this distortion and the lower prices on the Chinese market under the applicable legal framework.

• (189) Third, a significant price difference was observed during the investigation period between the HRC purchase prices of Jintai and the HRC Brazil domestic ex-works prices as well as those from Turkey (domestic ex-works) (both sourced from Metal Bulletin). As explained at recital (242) of the provisional Regulation, those prices were significantly higher than Jintai’s input prices, in the range of [10-30] % and [30-50] %.

• (190) Last, the Commission analysed whether the Turkish and Brazilian prices were appropriate prices representative of international markets according to Article 7(2a) of the basic Regulation. The Commission noted at the outset that in the absence of specific rules on the actual prices to be used in the basic Regulation, the Commission enjoys a wide margin of discretion as per the relevant jurisprudence of the European Courts. On the substance of the claim, the Commission noted that a high number of benchmark prices were available from sources such as Metal Bulletin and that there was no more suitable average available, for instance there was no benchmark aggregated by regions that could be used for the purpose of the investigation. By comparing the Turkish and Brazilian HRC domestic prices with the other several potential international benchmarks available in Metal Bulletin, the Commission noted that some were higher and some lower, supporting the conclusion on the representativity of the Brazilian and Turkish prices as an appropriate international benchmark. The Commission also noted that the underlying quantities of HRC traded in Brazil were very significant.

• (191) Jintai also claimed that the Brazilian domestic HRC prices were distorted by the COVID pandemic. For this purpose Jintai compared the HRC prices in Brazil and China. However, the Commission could not take into account this comparison as, as established in recital (75) of the provisional Regulation and confirmed in recital (46) above, Chinese prices of raw materials of the product concerned including HRC were subject to significant distortions. Moreover, as indicated above in recital (55), the increase in prices in Brazil domestic market was concomitant with a global increase of steel flat product prices. Finally, Jintai’s HRC prices were also significantly lower than the Turkish ex-works domestic prices sourced from Metal Bulletin.

• (192) Following final disclosure, Jintai made further comments regarding the application of Article 7(2a) of the basic Regulation. It claimed that the existence of distortion is a necessary condition but not a sufficient condition. The Government of China made a similar comment following final disclosure. The Commission noted that Article 7(2a) of the basic Regulation provides that a distortion exists if, due to a number of measures identified in that provision, a price of a raw material is ‘significantly lower as compared to prices in representative international markets’ and that this raw material shall account for no less than 17 % of the costs of production. These two conditions means that the distortion identified is as a serious distortion very likely to impact the competitiveness of the Chinese industry, while causing additional injury to the Union industry. In addition, the Commission recalled that in accordance with Article 7(2b) of the Basic Regulation, a further analysis was made before deciding on whether or not to apply Article 7(2) of the basic Regulation. In making the relevant analysis in this context, the Commission enjoys a wide margin of discretion ²². The application of Article 7(2a) of the basic Regulation is therefore not automatic as claimed by Jintai, but rather the outcome of a comprehensive analysis.

• (193) In conclusion, the parties submitted no compelling evidence that the Brazilian and Turkish domestic ex-works prices were not representative of international markets. The Commission, therefore confirmed its provisional conclusion to consider these prices representative as an international benchmark within the meaning of Article 7(2a) of the basic Regulation.

• (194) In view of the above, the claim of Jintai was rejected and recitals (235) to (243) of the provisional Regulation were confirmed

• (195) In line with recital (239) of the provisional Regulation, the Commission further investigated whether other possible raw materials such as cold-rolled coils were subject to distortions within the meaning of Article 7(2a). The Commission found that none of the raw materials accounting for more than 17 % of the cost of production of the product concerned were subject to distortions within the meaning of Article 7(2a) during the investigation period. The Commission further confirmed that, as regards the other sampled exporting producer, Baosteel, who did not purchase HRC in China, the modulation of the lesser-duty rule became moot since the dumping margin was lower than the underselling margin.

• (196) Following provisional disclosure, the GOC referred to Article 7(2a) of the basic Regulation, arguing that the purpose of evaluating whether raw materials are distorted is to examine whether a duty lower than the margin of dumping would be sufficient to remove injury. According to the GOC, the existence of raw materials distortions does not necessarily mean that the injury margin should be raised to the level of the dumping margin. The GOC claimed that the Commission had failed to make any assessment on whether the underselling margin was sufficient to eliminate injury and directly applied the dumping margin, which is contrary to the requirements and purpose of EU law.

• (197) Jintai referred to recent investigations where the Commission set the injury margin at the level of underselling margin, and claimed that such margin would remove the injury suffered by the Union industry. Even if the Commission considered that the underselling margin for Jintai is not sufficient to remove the injury, the injury margin should not automatically be set at the level of the dumping margin but should be determined by another reasonable method. Therefore, Jintai requested the Commission to use the calculated underselling margin to determine the injury elimination level, or to calculate another reasonable injury margin for Jintai.

• (198) In this respect, the Commission noted that Article 7(2a) of the basic Regulation provides that ‘when examining whether a duty lower than the margin of dumping would be sufficient to remove injury, the Commission shall take into account whether there are distortions on raw materials with regard to the product concerned’ and Article 7(2b) stipulates that ‘where the Commission, on the basis of all the information submitted, can clearly conclude that it is in the Union’s interest to determine the amount of the provisional duties in accordance with paragraph 2a of this Article, paragraph 2 of this Article shall not apply’. When the Commission establishes the existence of raw material distortions with regard to the product concerned and concludes that it is in the Union’s interest to determine the amount of the provisional duties at the level of dumping, the Commission is not required or entitled to calculate ‘another reasonable injury margin’ than the dumping margin as requested by Jintai. In all cases where it is concluded that the application of Article 7(2a) of the basic Regulation is warranted, like in the present case, given the additional injury suffered by the Union industry due to the existence of the raw material distortions in the export country, the level of duty considered necessary to remove such additional injury is deemed appropriate to be set by reference to the margin of dumping. Therefore, the Commission rejected the claims of the GOC and Jintai and confirmed the application of the margin to set the amount of the duty at the level of dumping with respect to Jintai, as set out in recital (277) of the provisional Regulation.

• (199) Therefore, recitals (275) to (280) of the provisional Regulation are confirmed.

7. UNION INTEREST

7.1.   Union interest under Article 7(2b) of the basic Regulation

• (200) At provisional stage, the Commission concluded in accordance with Article 7(2a) of the basic Regulation that it was clearly in the Union interest to set the duty rate for Jintai at the level of dumping margin found because of the existence of raw material distortions.

7.1.1.   Spare capacities in the exporting country

• (201) In the absence of comments regarding spare capacities in the exporting country, recitals (245) and (246) of the provisional Regulation are confirmed.

7.1.2.   Competition for raw materials

• (202) The related question of the HRC Chinese domestic prices was addressed in recitals (186) to (194). In the absence of more specific comments regarding competition for raw materials, recitals (247) and (248) of the provisional Regulation are confirmed.

7.1.3.   Effect on supply chains for Union companies

• (203) Following provisional disclosure, Eviosys, Astir Vitogiannis and CANPACK submitted additional claims that the Union industry is not in a position to provide the necessary quantities of ECCS, forcing them to rely on Chinese imports. They also claimed that imports from other third countries are not an alternative because of the long and complex validation processes, the unavailability of a sufficient range of specifications, and the tariff quotas under the Union safeguard measures.

• (204) The Commission carefully assessed all the evidence provided by Union users and Union industry in this respect.

• (205) Although the three users rely to a very different extent on Chinese imports, the Commission observed that a very small proportion of ECCS from China has been purchased from Jintai and that most of the quantities were purchased from Baosteel which will not be affected by the application of the provisions of Article 7(2a) of the basic Regulation with respect to Jintai or from the two other non-sampled cooperating Chinese exporting producers..

• (206) Therefore, the Commission considered that the application of the provisions of Article 7(2a) of the basic Regulation for Jintai, which will also affect the level of duties for the non-cooperating Chinese exporters, would not lead to serious value chain disruptions for the Union users. Indeed, they could supply ECCS from Baosteel and the other two cooperating but not sampled Chinese companies. All the more so considering that the definitive anti-dumping duty for Baosteel is revised significantly downwards as a result of the adjustments explained at recitals (57)-(60), which also caused a revision downwards of the duty for the non-sampled cooperating exporters. In addition, users could also import ECCS from other third countries that are not subject to anti-dumping measures.

7.1.4.   Conclusion on Union interest under Article 7(2b) of the basic Regulation

• (207) The Commission confirmed its conclusion in recitals (252) and (253) of the provisional Regulation that it is in the Union interest to determine the amount of provisional duties in relation to Jintai in accordance with Article 7(2a) of the basic Regulation.

7.2.   Union interest under Article 21 of the basic Regulation

7.2.1.   Interest of the Union industry

• (208) In the absence of comments regarding the interest of the Union industry, recitals (255) and (256) of the provisional Regulation are confirmed.

7.2.2.   Interest of users, unrelated importers and traders

• (209) Following provisional disclosure, three users, namely Eviosys, CANPACK and Astir Vitogiannis, strongly disagreed with the Commission’s preliminary conclusion on Union interest and reiterated their claims that there are several serious supply issues when users place orders with Union ECCS producers leading to a shortage on the Union market and that Union producers are exporting a significant portion of their produced ECCS.

• (210) The three above-mentioned users submitted certain evidence about a refusal or impossibility of Union producers to supply the requested quantities of ECCS, as well as about problems of delivering fully and regularly on agreed volumes.

• (211) Eviosys expressed concerns that the two Union producers, ThyssenKrupp and ArcelorMittal, are taking advantage of their market situation in which they are two key players with a very high combined market share and significant protection already, due to the safeguard measures in place, from imports by pursuing a policy of exorbitant price increases, especially since 2021.

• (212) Eviosys, CANPACK and Astir Vitogiannis disagreed with the Commission’s conclusion that the Union industry has sufficient production capacity to cover the demand on the Union market. According to them, even if it was true that the Union industry has sufficient capacity and might be theoretically capable to serve the Union market, the reality is that the Union producers are not willing to supply or cannot meet the volume demands of their customers while exporting above 20 % of their total output. According to Astir Vitogiannis, even the theoretical capacity of the Union industry, operating at 100 % utilisation rate, would not be sufficient to meet the entire Union demand. Any disruption or force majeure on the side of the Union producers, which has happened already many times in the past, severely affects their output of ECCS and, as a result, impacts the viability of the downstream industries that depend heavily on this concentrated supplier industry. CANPACK reiterated its claim after final disclosure.

• (213) On the contrary, the Union industry insisted that it has sufficient capacity to cover the demand on the Union market and that it could re-direct export sales to the Union market to satisfy demand, which has already happened. The Union producers also claimed that the past supply issues were the result of price considerations rather than due to shortages of production and supply. The Union industry further stated that the demand in the Union is currently falling and that they would therefore have the possibility to supply additional quantities.

• (214) CANPACK claimed, both after provisional and final disclosure, that the post-investigation period situation and market reality differ significantly from that which constituted the basis for Union ECCS producers to initiate the investigation and which existed during the investigation period. At the moment, the level of ECCS prices offered by Chinese producers is more comparable, or even higher than those on the Union market. CANPACK argued that the level of the measures imposed by the Commission are clearly not adequate as is the provisional duty levels were several times higher than the difference between prices of ECCS originating in the Union and China. In the opinion of CANPACK, the measures would lead to immense differentiation of the prices offered by the Union and Chinese ECCS producers, opening up the possibility of additional price increases by the Union producers, as well as a duopoly of the two major ECCS producers in the Union. Consequently, the imposition of the measurers would result in financial losses on the part of Union ECCS users importing ECCS from China. Moreover, account should be taken of the fact that because of the imposition of anti-dumping duties, Union ECCS users will have lower profit margins and will have to pass on to consumers (already struggling with high inflation) any price increase in ECCS or, in the worst case scenario, even abandon their activities.

• (215) Astir Vitogiannis also requested the Commission to consider the post-investigation period developments in the assessment of the Union interest. It pointed out that although Article 6(1) of the basic Regulation provides that ‘[I]nformation relating to a period subsequent to the investigation period shall, normally, not be taken into account’, the settled case-law of the Union courts clearly maintained that Article 6(1) of the basis Regulation only relates to the assessment of dumping and injury and not to the assessment of Union interest. In this respect, Astir Vitogiannis referred to case Kazchrome where the General Court confirmed that ‘Article 6(1) of the basic Regulation does not apply in the context of determining whether there is a Community interest as contemplated in Article 21(1) of the basic Regulation, which means that information relating to a period subsequent to the investigation period may be taken into account for those purposes’ ²³ and case CPME where the General Court held that the assessment of Union interest involves a ‘forecast based on hypotheses regarding future developments, which includes an appraisal of complex economic situations’ ²⁴. More specifically, Astir Vitogiannis claimed that during the post-investigation period, the Union industry had increased their selling prices almost 100 %, while the cost had increased to a much lesser extent, resulting in healthy and strong profit margins according to the latest financial results reported by the complainants themselves.

• (216) The Commission carefully considered all of the above arguments, including those concerning the post-investigation period developments. With regard to the price levels after the investigation period, the Commission noted that prices indeed increased but had no evidence at its disposal showing that such higher prices were structural. Rather, to the contrary, concerning import prices from the countries concerned, the Commission established that after their initial peak in the post-investigation period and in particular in February, import prices started to go down, both immediately before and during the pre-disclosure period ²⁵ despite the announcement of the upcoming imposition of provisional duties. With regard to the alleged supply issues on the Union market, when weighing the various interests, the Commission was not convinced that these were of a sufficient magnitude and extent to put into question the existence or the level of the measures. In this respect, the Commission took note of the statement of the Union industry that the balance of supply and demand is shifting in favour of the buyers of ECCS with prices already going down as shown by the price development of imports from the countries concerned. The Commission also noted the Union industry’s readiness to re-direct export sales to the Union market to satisfy any demand surplus, as has already happened in the past. Moreover, in view of the expected slowdown of the economy for the rest of 2022 and 2023 ²⁶, both prices and demand are not expected to increase further. The Commission also recalled that Article 21(1) of the basic Regulation specifies that ‘the need to eliminate the trade distorting effects of injurious dumping and to restore effective competition shall be given special considerations’. In this respect, the Commission noted that the users did not make a compelling case that the envisaged level of measures would affect their profitability and operation to such an appreciable extent as to outweigh the need to impose the measures in order to prevent the distortive effects and material injury caused to the Union industry by the dumped imports. Indeed, as explained in recital (265) of the provisional Regulation, based on the data of Eviosys, the sole user which provided a questionnaire reply, it appeared that it would be able to absorb a possible cost increase considering its current profitability from sales of products using ECCS and the share of imports from the countries concerned in its sourcing portfolio. This conclusion has not been put into question following the provisional disclosure. The Commission thus did not find that the post-investigation period developments meant that the imposition of measures would be inappropriate, having regard to all the various interests at stake.

• (217) After final disclosure, Eurofer claimed that Astir has recently refused deliveries and did not enquire about possible future deliveries, while Eviosys’ demand decreased in 2022. The Commission noted that most of the evidence was provided by the Union producers but was not confirmed by quotations of correspondence with the respective users. Consequently, the Commission was unable to verify the additional evidence provided, especially given its late submission in the course of the proceedings.

• (218) Astir Vitogiannis, as well as CISA and CANPACK after final disclosure, also expressed concerns that the anti-dumping measures in the form and at the level imposed by the provisional Regulation disproportionately and unfairly protect and further reinforce the existing duopoly of Union producers to the extreme detriment of independent users and processors. It further claimed that the increase in costs for Union users will make them significantly less competitive compared to suppliers of ECCS-based products (metal packaging, crown corks) in third countries with no anti-dumping measures in force. Such measures will result in significant cost increases for users and processors at the expense of their profitability, since they are not able to fully absorb such cost increases themselves, as ECCS constitutes a major part in the cost of final products (food and beverage packaging elements, crown corks, etc.) Astir Vitogiannis claimed that passing on the cost increase in full further down the supply chain is simply unrealistic, and substantiated its claim with supporting evidence.

• (219) Furthermore, Astir Vitogiannis is concerned that the anti-dumping measures at such high levels and their application already at the provisional stage are putting at a very high risk the Union users as far as the raw materials and orders already in transit are concerned, who face a situation where they will not to be able to import the material due to the extreme financial impact and collateral guarantees required at importation customs process. Therefore, Astir Vitogiannis requested the Commission to consider these particular circumstances and ensure that measures are taken in order to limit the fallout from provisional anti-dumping measures on goods that were in transit.

• (220) As also explained above at recital (216), these users relied on relatively general statements and did not quantify and substantiate the impact of the measures on their profitability and viability. On the contrary, as explained in recital (265) of the provisional Regulation, it appeared that Eviosys, which is the only user that submitted a questionnaire reply and data about costs and profitability, would be able to absorb a possible cost increase. Therefore, the Commission rejected these claims.

• (221) Eviosys also expressed its concerns about the simultaneous application of safeguard and anti-dumping measures, the combined effects of which on the same imported products would exacerbate any negative spill-overs of each measure on Union users and consumers. Eviosys referred to previous submissions where it has explained that the safeguard measures in place, in combination with other recent developments in the steel market in Europe and worldwide, have led to significant supply shortages of ECCS in the Union, affecting both Eviosys and the steel packaging industry as a whole. This does not only concern imports from China but also imports from other third countries – some of which are not even allocated a country-specific quota under the safeguard measures. Eviosys disagreed with the statement of the Commission in recital (250) of the provisional Regulation that ‘Union users could source the product under investigation from other third countries’. According to Eviosys, if anti-dumping duties are imposed on Chinese and Brazilian imports, such measures will further exacerbate the situation of limited supply in the Union market, especially given the level of the duties provisionally imposed by the Commission, which were extremely high.

• (222) The Commission recalled that the anti-dumping measures only apply if and to the extent that the imports of the product concerned are not subject to the safeguard measures. According to Regulation (EU) 2019/1382 ²⁷, there is no double remedy in place at the same time on the same product. That principle will also be reflected in the present Regulation, as set out in recitals (262) and (263) below. In any event the parties failed to substantiate how the combination of the measures would actually affect them in such a negative way to render the imposition of the anti-dumping measures against the Union interest. Therefore this argument was rejected.

• (223) Both after provisional and final disclosure, CANPACK disagreed, with the Commission’s finding that Union users of ECCS have an alternative in the form of ECCS supplies from third countries, considering that the safeguard tariff quotas granted to other third countries are lower than those granted to China, and are thus being consumed much faster. CANPACK claimed that, contrary to the Commission’s statement in the provisional Regulation, the prices of ECCS originating in Japan and South Korea in the investigation period were not significantly higher but comparable to the average import price of imports from China (Japan EUR 776 (+ 8,5 % in comparison to Chinese prices); South Korea EUR 763 (+ 6,7 % in comparison to Chinese prices)), while the cost level in these two countries is higher than in China.

• (224) Astir Vitogiannis also pointed out that the very high anti-dumping duties will effectively ban the majority of imports from China and Brazil while there are no realistic and sufficient alternative supplies from other third countries and disagreed with the Commission’s assertion that decreasing imports from other, non-investigated countries, is due to allegedly low and dumped import prices from Brazil and China, and that ‘[I]n the absence of dumped imports from the countries concerned, imports from other third countries would increase, as the sales prices on the Union market would be more attractive’. According to Astir Vitogiannis, the available Eurostat data shows that import prices from non-investigated countries (e.g. UK, South Korea) have increased significantly during the most recent past (i.e., following the end of the investigation period) despite the alleged low and dumped prices from China and Brazil, and equally despite the fact that import volumes from these non-investigated countries decreased at the same time. This further demonstrates that imports from other third countries cannot be relied upon as a valid and guaranteed backup for lost imports from Brazil and China. Finally, Astir Vitogiannis argued that imports from other third countries, require long qualification and validation process up to one year due to the nature of the business.

• (225) The Commission disagreed. As already explained at recitals (250) of the provisional Regulation, the Commission found that the total volume of imports from other third countries decreased by 23 % over the period considered, while at the same time imports from the countries concerned increased. In the absence of dumped imports from the countries concerned, imports from other third countries would likely increase as the Union market would be more attractive and higher prices could be charged. Furthermore, according to information submitted by the Union industry, prices already started to fall in May 2022, which as explained in recital (216), was confirmed also by the prices of the imports from the countries concerned; the balance was shifting in favour of buyers, and that in any event they are ready to re-direct part of the export sales to supply buyers in the Union. Therefore this claim was rejected.

• (226) Following provisional and final disclosure, CISA argued that the current inflationary pressure experienced in the Union economy, together with the pressure on supply chains and the limited availability of the product concerned and its raw materials due to geopolitical developments, as well as the severe global supply chain disruptions, should prompt the Commission to abandon the measures or at least to suspend them. In addition, CISA and the GOC argued that ECCS is primarily used to produce low-cost canned foods, which are relied on extensively by Union consumers at the lower income levels, who are already experiencing increased cost of living expenses due to inflation. CISA and the GOC also referred to the comments made by Eviosys with respect to supply shortages on the Union market and further pointed to the strong market power of the Union producers, to the detriment of the downstream industry’s bargaining power. In this regard, they referred to Commission decision of 11 June 2019 prohibiting the Tata steel and ThyssenKrupp joint venture. ²⁸

• (227) The Commission disagreed. First, it noted that these assertions by CISA were generic and there no actual explanation or evidence of the impact of the factors mentioned on the users’ situation was provided. Furthermore, as explained at recital (266) of the provisional Regulation concerning possible effect on food prices, Eviosys did not substantiate its claim to demonstrate that the increase of ECCS prices would result in an increase in food packaging prices, and ultimately in an increase of foodstuff prices, or that such potential increases would be in the same proportion as the increase of ECCS prices. Furthermore, ECCS is only used for food cans’ endings, while tinplate, which is more expensive, is used for the cans’ body. Therefore, any potential increase of ECCS prices alone is not likely to affect food packaging prices significantly. This conclusion has not been put into question following provisional disclosure. Therefore, the Commission rejected the claims of CISA and the GOC.

• (228) In conclusion, the Commission noted that under Article 21(1) of the basic Regulation a determination as to whether the Union interest calls for an intervention shall be based on an appreciation of all the various interests taken as a whole. In such an examination, the need to eliminate the trade distorting effects of injurious dumping and to restore effective competition shall be given special consideration.

• (229) The Commission carefully assessed all claims and evidence in relation to Union interest and verified whether the protection offered the Union industry by measures would be clearly disproportionate when compared to the interest of users, as specified in this section.

• (230) In view of the clear dumping and injury picture, the Commission concluded that definitive measures are warranted to enable the Union producers to return to sustainable profit levels. Specifically, the Commission concluded that the injury suffered by the Union industry and the need to protect it from dumped imports from the countries concerned prevailed over the issues raised by users. Nevertheless, in light of the issues described by the users and the market developments after the investigation period, as further explained in recital (244) below, the Commission considered the application of a form of duties that would be better suited to these developments.

• (231) Therefore, the Commission confirmed the provisional conclusion that there are no sufficient compelling reasons of Union interest under Article 21 of the basic Regulation against the imposition of definitive measures on imports of the product concerned.

7.2.3.   Conclusion on Union interest

• (232) Considering the above-mentioned, the Commission confirmed the conclusion in recital (274) of the provisional Regulation that there were no compelling reasons that it was not in the Union interest to impose measures on imports of ECCS originating in the countries concerned.

8. DEFINITIVE ANTI-DUMPING MEASURES

8.1.   Definitive measures

• (233) In view of the conclusions reached with regard to dumping, injury, causation, level of measures and Union interest, and in accordance with Article 9(4) of the basic Regulation, definitive anti-dumping measures should be imposed in order to prevent further injury being caused to the Union industry by the dumped imports of the product concerned.

• (234) Following the same approach explained in recital (278) of the provisional Regulation, the definitive duty for the other cooperating non-sampled companies in the PRC was based on the weighted average dumping margin as established for the two sampled companies in the PRC, which, contrary to the provisional stage, was lower than the weighted average injury margin.

• (235) Following the clarifications and corrections made by the Commission on 16 September 2022, CISA commented that it was still unclear whether the fixed duty for other cooperating companies was based on the dumping margin or injury margin found for these companies. In addition, it reiterated its argument that the Commission did not make findings of raw materials for the cooperating non-sampled companies. As a result, Articles 7(2a) and 7(2b) of the basic Regulation should not apply to those companies.