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

(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.

(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.

(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.

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

(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.

(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.

(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.

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

(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.

(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.

(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.

(236) The Commission clarified that the fixed duty for the cooperating non-sampled companies was based on the weighted average dumping margin which was lower than the weighted average injury margin found. Furthermore, the Commission considered that the sample of the exporting producers in the PRC was representative and, as pointed out in recital (16) of the provisional Regulation, no party challenged or even commented on the selected sample. Consequently, the findings for the sampled companies, including regarding Articles 7(2a) and 7(2b) of the basic Regulation for Jintai, were also considered representative for the non-sampled cooperating companies. Hence, the Commission considered it appropriate to take into account those findings when calculating the weighted average injury and dumping margins of the cooperating non-sampled companies on the basis of the two sampled companies. It therefore rejected the claim.

(237) As explained in recitals (279) and (280) of the provisional Regulation, given the low level of cooperation from producers in the PRC and the fact that the duty level for Jintai was based on the dumping margin found in accordance with Article 7(2a) of the basic Regulation, the level of the countrywide duty level was based on the highest dumping margins found per product types sold in representative quantities by Jintai. The Commission did not need to calculate the underselling or the injury margins as regards non-cooperating companies because of the findings of raw materials distortions under Article 7(2a).

(238) Regarding Brazil, cooperation was high and as a result, the residual duty was set at the same level as the one applicable to Companhia Siderúrgica Nacional.

(239) At provisional stage, the Commission imposed ad valorem duties. Following provisional disclosure, CSN, Eviosys, Baosteel and the Greek Ministry of Foreign Affairs requested the Commission to consider the application of a minimum import price (‘MIP’) instead of ad valorem duties. CSN claimed that a MIP would allow the Union producers to recover from the effects of alleged injurious dumping while preventing any adverse effect of undue price increases after the investigation period which could have a significant negative impact on the users’ business. A MIP would also accommodate the concerns of users as they fear a shortage of the product concerned and would prevent serious disturbances in the supply of the Union market.

(240) The Commission assessed these claims and considered that a MIP was not an appropriate form of duties as it tends to set the price at a fixed levels and thus has the potential to interfere on the market in a more forceful way. This could be particularly problematic in the case at hand where the market is characterised by a small number of Union producers. In addition, a MIP is often not an appropriate form of duty for markets that are subject to volatility (e.g. raw material prices volatility), which is the case for steel products. Therefore, the Commission rejected these requests.

(241) After final disclosure, Eviosys and Baosteel reiterated their request for considering the application of a MIP. This request was supported by CANPACK. In addition, Eviosys proposed that a MIP, combined with an ad valorem duty that becomes applicable when the MIP is not respected, should be applicable for the first two years of the application of the measures after which a fixed duty would automatically replace the MIP. Eviosys justified its request on the basis of exceptional circumstances regarding the availability of supplies of the product concerned by the Union producers which it considered will be solved within the next two years. Furthermore, it referred to several previous Regulations (29) where the Commission changed the duties to a MIP in order to safeguard the interests of the users and prevent shortages of supply. In addition, it made reference to previous investigations where the duration of the anti-dumping measures was limited to two years due to exceptional market circumstances (30).

(242) After final disclosure, Eurofer supported the Commission’s findings that a MIP would not be an appropriate anti-dumping duty in the investigation at hand because of the sharp recent increase in costs of production for ECCS, which impacts the sales price of ECCS. A MIP would therefore not bring adequate relief to the industry. Moreover, this case was substantially different from previous investigations where a MIP was applied, and MIPs are easy to circumvent or absorb.

(243) The Commission observed that no new information or evidence was submitted by Eviosys or Baosteel in support of their reiterated requests for imposing a MIP. Therefore, the findings made in recital (240) above remained valid. In addition, no evidence was provided by Eviosys in support of its claim that a MIP would be more appropriate than the fixed duty as proposed by the Commission to address the alleged temporary shortage of supply. In addition, the alleged temporary shortage of supply was questioned, given the submissions by the Union industry that it will continue selling sufficient quantities of the product concerned. Finally, even if the alleged shortage of supply would indeed materialise, nothing on the file indicated that the two years’ period of imposing a MIP would be the appropriate and proportionate tool for addressing it. As far as the previous Regulations referred to by Eviosys regarding the imposition of a MIP are concerned, the Commission recalled that the assessment of whether the imposition of a MIP is appropriate is carried out on a case-by-case basis and depend on the particular circumstances of each case. In the case at hand, for the reasons set out in recital (240) above, namely that the MIP only offers a basic level of protection which is not sufficient in this case in view of the clear findings of dumping and injury, and the current difficult and volatile market conditions, it was considered that a MIP would not be a suitable type of anti-dumping measure. Regarding the references to previous Regulations where the overall duration of the respective anti-dumping measures was limited to two years, the Commission failed to see their relevance as they concerned only the overall duration of the measures and not their change in form after several years of application as proposed by Eviosys. In addition, as pointed out by Eviosys itself, in each of those Regulations the reasoning to limit the duration of the measures was very specific to the factual circumstances of that particular investigation and differed substantially among each other. Consequently, the Commission considered that the quoted Regulations concerned different situations than in the case at hand. In view of the above considerations, the Commission rejected these requests.

(244) With regard to the form of measures, in view of the volatility of the ECCS prices after the end of the investigation period, which almost doubled, the Commission considered the application of a fixed duty per tonne instead of ad valorem duties. A fixed or specific duty would allow the protection of the Union industry from injurious dumped imports from the countries concerned, while being less prohibitive compared to an ad valorem duty in case of an increase of prices, as its weight is significantly reduced in such a case.

(245) The fixed duty will be based on the respective non-injurious or non-dumped price during the investigation period.

(246) Should the import prices from the countries concerned change significantly and should this change be of lasting nature and result in the anti-dumping measures become less effective, the Commission reminds the parties that Article 11(3) of the basic Regulation would allow the Commission to take these lasting changes into account to possibly adapt the measures according to the new circumstances, including by changing their form.

(247) Following final disclosure, Eurofer took issue with the proposed fixed duty arguing that developments in the post investigation period justified the application of an ad valorem duty. In particular, it claimed that gas and electricity prices in the Union have increased dramatically and are expected to increase further in the near future. Moreover, energy prices in Brazil and the PRC are not following the same upward trend which would allow the imports from those countries to enter at low prices into the Union. Consequently, Eurofer argued that given the persistent high ECCS price level, ad valorem duties are necessary to ensure adequate protection of the Union industry. Finally, given that the ECCS price level will not experience any other highly unusual peaks, there is no risk that ad valorem duties would be too prohibitive.

(248) The Commission acknowledged that energy prices have indeed increased. However, no claim was made and no evidence was provided that the ECCS producers would be unable to increase their prices and to pass on their increased overall costs to the users and how a fixed rather than an ad valorem duty would be different in this respect. Similarly, no evidence was provided that the fixed duties calculated on the respective non-dumped or non-injurious price found during the investigation period would prevent the Union industry from recovering from the injury suffered during the investigation period. At the same time, as acknowledged by Eurofer, even though prices may have reached their peak in the period February to May 2022 and they have declined since that peak, prices remained, also after this period, well above the price levels of the investigation period. In these circumstances the Commission confirmed its conclusions in recital (244) above that the fixed duty will ensure protection of the Union industry from injurious dumped imports from the countries concerned, whereas at the same time the concerns of users with regard to the high prices were addressed to the extent possible. In any event, as indicated in recital (246) above, should prices from the countries concerned change significantly and should this change be of lasting nature and result in the anti-dumping measures become less effective, the level and/or the form of the measures can be revisited.

(249) Following final disclosure, the Brazilian exporting producer CNS offered a price undertaking on 13 September 2022. Since that offer was received well after the deadline set by Article 8 of the basic Regulation, the Commission rejected the offer on the grounds that it had been submitted out of time. The Commission informed all interested parties of this through a note to the file.

(251) The individual company anti-dumping duty rates specified in this Regulation were established on the basis of the findings of this investigation. Therefore, they reflect the situation found during this investigation in respect to these companies. These duty rates are thus exclusively applicable to imports of the product concerned originating in the countries concerned and produced by the named legal entities. Imports of the product concerned manufactured 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 should be subject to the duty rate applicable to ‘all other companies’.

(252) A company may request the application of these individual anti-dumping duty rates if it changes subsequently the name of its entity. The request must be addressed to the Commission (31). 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 about the change of name will be published in the Official Journal of the European Union.

(253) To minimise the risks of circumvention due to the difference in duty rates, special measures are needed to ensure the proper application of the individual anti-dumping duties. The companies with individual anti-dumping 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 anti-dumping duty applicable to ‘all other companies’.

(254) While presentation of this invoice is necessary for the customs authorities of the Member States to apply the individual rates of anti-dumping 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 may, 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 rate of duty is justified, in compliance with customs law.

(255) Should the exports by one of the companies benefiting from lower individual duty rates increase significantly in volume, in particular 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 13(1) of the basic Regulation. In such circumstances, an anti-circumvention investigation may be initiated, provided that the conditions for doing so are met. This investigation may, inter alia, examine the need for the removal of individual duty rate(s) and the consequent imposition of a country-wide duty.

(256) To ensure a proper enforcement of the anti-dumping duties, the anti-dumping duty for all other companies should apply not only to the non-cooperating exporting producers in this investigation, but also to the producers which did not have exports to the Union during the investigation period.

(257) In view of the dumping margins found and given the level of the injury caused to the Union industry, the amounts secured by way of provisional anti-dumping duties imposed by the provisional Regulation, should be definitively collected up to the levels established under the present Regulation.

(258) Following provisional disclosure, Astir Vitogiannis, the Greek Ministry of Foreign Affairs, Baosteel and CISA claimed that the measures should be suspended according to Article 14(4) of the basic Regulation. Following final disclosure, the same claims were made by CSN and CISA. CISA also referred to public calls of VDMA, the German and European Mechanical Engineering Industry Association, and of Orgalim, the Union’s representative association of EU technology industries, both of which called on the EU to suspend trade remedies duties on steel products due to the military aggression by the Russian Federation against Ukraine. However, none of the articles referred to concerned particularly ECCS or the situation of the market for that particular niche product.

(259) Baosteel did not explain further why a suspension was necessary. CISA and CSN referred to the post-investigation period price increases, the pressure on supply chains and the limited availability of ECCS and its raw materials due to recent geopolitical developments.

(260) Astir Vitogiannis argued that there is limited availability of ECCS and that injury will not resume as the Union industry is allegedly no longer injured based on the overall positive results of the two Union producers. The Greek Ministry of Foreign Affairs only referred to the unprecedented and temporary changes on the market in terms of very high prices in post-investigation period.

(261) In response, the Commission recalled its findings already set out in the context of the Union interest assessment. In particular, as noted in recitals (216) and (225), prices had started to fall. In addition, and in view of the expected slowdown of the economy for the rest of 2022 and 2023, prices and demand are not expected to increase further. In light of the findings of the extent of the injurious dumping caused by the imports from the countries concerned during the investigation period, there was also no evidence that market conditions had temporarily changed to the extent that the immediate resumption of imports from the countries concerned would mean that the Union industry would be unlikely to suffer injury for the duration of nine months. On that basis, the Commission decided that it was not appropriate to further consider the claims about suspending the measures at this time.

(262) By Commission Implementing Regulation (EU) 2019/159 (32), 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 (33), 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 and the anti-dumping duty would become payable on the same imports. As such cumulation of anti-dumping 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 duty with the above-quota tariff duty for the product concerned for the duration of the imposition of the safeguard duty.

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

(264) In view of Article 109 of Regulation (EU, Euratom) 2018/1046 (34), 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.

(265) 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,

HAS ADOPTED THIS REGULATION:

Article 1

Article 2

The amounts secured by way of the provisional anti-dumping duty under Implementing Regulation (EU) 2022/802 imposing a provisional anti-dumping duty on imports of electrolytic chromium coated steel products originating in the People’s Republic of China and Brazil shall be definitively collected. The amounts secured in excess of the definitive rates of the anti-dumping duty shall be released.

Article 3

Article 1 (2) may be amended to add new exporting producers from the People’s Republic of China and make them subject to the appropriate weighted average anti-dumping duty rate for cooperating companies not included in the sample. A new exporting producer shall provide evidence that:

(a) it did not export the goods described in Article 1(1) during the period of investigation (1 July 2020 to 30 June 2021);

(b) it is not related to an exporter or producer subject to the measures imposed by this Regulation; and

(c) it has either actually exported the product concerned or has entered into an irrevocable contractual obligation to export a significant quantity to the Union after the end of the period of investigation.

Article 4

Article 5

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 November 2022.

For the Commission The President Ursula VON DER LEYEN

(1) OJ L 176, 30.6.2016, p. 21.

(2) Notice of initiation of an anti-dumping proceeding concerning imports of electrolytic chromium coated steel (ECCS) products originating in the People’s Republic of China and Brazil (OJ C 387, 24.9.2021, p. 2).

(3) OJ L 143, 23.5.2022, p. 11.

(4) Commission Staff Working Document on Significant Distortions in the Economy of the People’s Republic of China for the purposes of Trade Defence Investigations, 20 December 2017, SWD(2017) 483 final/2.

(5) https://www.usitc.gov/investigations/701731/2021/cold_rolled_steel_flat_products_brazil_china_india/first_review_full.htm

(6) Brazil Steel Institute (https://acobrasil.org.br/).

(7) Ibid.

(8) OECD, Steel market developments, Q2 2021, available at: https://www.oecd.org/industry/ind/steel-market-developments-Q2-2021.pdf

(9) The price CFR Italian ports was used. It was the only CFR price available for this product on the Metal Bulletin database.

(10) https://corporate.arcelormittal.com/media/press-releases/arcelormittal-completes-investment-agreement-with-invitalia, accessed on 28 August 2022.

(11) The GOB erroneously referred to recital (158) of the provisional Regulation.

(12) WT/DS578/R, Morocco – Definitive Anti-Dumping Measures on School Exercise Books from Tunisia, Panel Report of 27 July 2021, para. 7.207.

(13) See judgments of the General Court of 14 September 2022, Methanol Holdings (Trinidad) v Commission, Case T-744/19 ECLI:EU:T:2022:558, para. 100 and of 14 September 2022, Nevinnomysskiy Azot and NAK ‘Azot’ v Commission, Case T-865/19, ECLI:EU:T:2022:559, paras 195, 261-268.

(14) Judgment of the General Court of 10 April 2019, Jindal Saw and Jindal Saw Italia v Commission, T-301/16, EU:T:2019:234, para. (184).

(15) Judgment of the General Court of 27 April 2022, Giant Electric Vehicle Kunshan v Commission, T-242/19, EU:T:2022:259, paras (89) and (90).

(16) Such as for customs duties and post importation costs, as well as adjustments for discounts and rebates.

(17) Judgment of the Court of Justice of 12 May 2022, Commission v Hansol Paper, C-260/20 P, ECLI:EU:C:2022:370, paras (95)-(114).

(18) Judgment of the General Court of 4 May 2022, China Rubber Industry Association (CRIA) and China Chamber of Commerce of Metals, Minerals & Chemicals Importers & Exporters (CCCMC) v European Commission, ECLI:EU:T:2022:266, paras (139)-(140).

(19) See footnote 15 above.

(20) See ‘ArcelorMittal earnings skyrocket, foresees supportive 2022 conditions’, 10 February 2022, available at https://www.kallanish.com/en/news/steel/market-reports/article-details/arcelormittal-sees-2022-market-conditions-supportive-0222/; ‘Thyssenkrupp cashes in on higher steel prices’, 10 February 2022, available at https://eurometal.net/thyssenkrupp-cashes-in-on-higher-steel-prices/; ‘EU mills lift HRC further amid cost escalation’ 10 March 2022, available at https://eurometal.net/eu-mills-lift-hrc-further-amid-cost-escalation/

(21) See judgment of the General Court of 14 September 2022, Methanol Holdings (Trinidad) v Commission, Case T-744/19, ECLI:EU:T:2022:558, para. 103.

(22) See Judgment of the General Court of 14 September 2022, Nevinnomysskiy Azot and NAK ‘Azot’ v Commission, Case T-865/19, ECLI:EU:T:2022:559, para. 377.

(23) See, Case T-192/08, Transnational Company ‘Kazchrome’ and ENRC Marketing v Council, EU:T:2011:619, paras 221-225

(24) See, Case T-422/13, Committee of Polyethylene Terephthalate (PET) Manufacturers in Europe (CPME) and Others v. Council, EU:T:2017:251, para. 144, referring to Case T-132/01, Euroalliages and Others v. Commission, EU:T:2003:189, para. 47.

(25) Pre-disclosure took place on 25 April 2022.

(26) European Commission, ‘Summer 2022 Economic Forecast: Russia’s war worsens the outlook’, available at: https://ec.europa.eu/commission/presscorner/detail/en/ip_22_4511

(27) Commission Implementing Regulation (EU) 2019/1382 of 2 September 2019 amending certain Regulations imposing anti-dumping or anti-subsidy measures on certain steel products subject to safeguard measures (OJ L 227, 3.9.2019, p. 1).

(28) Commission decision in Case M.8713 – Tata Steel/ThyssenKrupp/JV, 11 June 2019, para. 444.

(29) Among others, those investigations concerned imports of grain oriented flat-rolled products of silicon-electrical steel from China, Russia, Korea, Japan and USA, hot-rolled flat products from Brazil, Iran, Russia and Ukraine, melamine from China and solar glass from China. For a complete list see pp 4-5 of Eviosys submission dated 13 September 2022.

(30) Idem, see pp. 6-7.

(31) European Commission, Directorate-General for Trade, Directorate G, Wetstraat 170 Rue de la Loi, 1040 Brussels, Belgium. Email: TRADE-Defence-Complaints@ec.europa.eu

(32) Commission Implementing Regulation (EU) 2019/159 of 31 January 2019 imposing definitive safeguard measures against imports of certain steel products (OJ L 31, 1.2.2019, p. 27).

(33) Commission Implementing Regulation (EU) 2021/1029 of 24 June 2021 amending Commission Implementing Regulation (EU) 2019/159 to prolong the safeguard measure on imports of certain steel products (OJ L 225 I, 25.6.2021, p. 1).

(34) Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ L 193, 30.7.2018, p. 1).

(35) Commission Implementing Regulation (EU) 2015/2447 of 24 November 2015 laying down detailed rules for implementing certain provisions of Regulation (EU) No 952/2013 of the European Parliament and of the Council laying down the Union Customs Code (OJ L 343, 29.12.2015, p. 558).