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

• (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.

• (250) On the basis of the above, the definitive anti-dumping duty rates, expressed as a CIF Union border price, customs duty unpaid, should be as follows:

• (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.

8.2.   Definitive collection of the provisional duties

• (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.

9. CLAIMS FOR SUSPENSION

• (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.

10. FINAL PROVISION

• (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

10 March 2022, available at https://eurometal.net/eu-mills-lift-hrc-further-amid-cost-escalation/