Commission Implementing Regulation (EU) 2023/1103 of 6 June 2023 imposing a definitive countervailing duty on imports of certain graphite electrode systems originating in India following an expiry review pursuant to Article 18 of Regulation (EU) 2016/1037 of the European Parliament and of the Council

(260) Moreover, as explained above in recitals (221) to (224) the global situation of the Union industry is affected by the particular situation of GrafTech Iberica that is temporary. The LTAs came to an end (to a large extent the large majority of the LTAs in force already expired in 2022) Some of the existing LTAs sourced from GrafTech Iberica were extended for one or two years beyond 2022. However, the extended LTAs covered only a minor part of total sales sourced from GrafTech Iberica. Even including the extended LTAs, the vast majority of the sales volume sourced from GrafTech Iberica will, at the end of 2023 no longer be covered by the current LTAs. This proportion will further increase at the end of 2024. Moreover, the Commission noted that the average sales prices for products sourced from GrafTech Iberica for the IP declined compared to 2020 (even including the sales under the LTAs), which indicated that sales sourced from GrafTech Iberica were impacted by the imports of graphite electrodes from India and China at low prices. Therefore, by the end of 2023 at the latest, GrafTech Iberica will be in the same situation as the other producers and will be fully exposed to the impact of increasing volumes of dumped and subsidized imports from India. This means that the economic situation of the Union industry would further deteriorate should measures be allowed to lapse.

(261) With a loss of profitability, the Union industry would not be able to carry out necessary investments. Ultimately, this would also lead to an employment loss and risk of production lines closures.

(262) After disclosure the GOI argued that there is no likelihood of recurrence of injury in the present case, primarily because the market share of the imports from India into the Union is merely 5 % and that any injury to the Union industry is on account of imports from China and not imports from India. Furthermore, the GOI argued that the low import prices from India is a reaction to the low-priced imports from China.

(263) When establishing whether there is a likelihood of recurrence of injury originally caused by the dumped imports from India, as explained in recital (247), the Commission considered several elements such as production volume and spare capacity in India, export volumes and prices from India to the other third country markets, existing measures in the other third countries, attractiveness of the Union market, and likely price levels of imports from India and their impact on the Union industry’s situation, should the measures be allowed to lapse. In its comments GOI did not question the Commission’s analysis or conclusion on any of these elements other than the one addressed in recital (127). Contrary to what the GOI suggested in its comments, the Commission did not base its finding with regard to the likelihood of recurrence of injury on the market share of imports of the GES from India to the Union observed during the review investigation period.

(264) The claim was therefore dismissed.

(265) Furthermore, the GOI claimed that the Union market is not a price attractive market for the Indian exporting producers as its export prices to the Union are lower that the export price of GES to other third countries.

(266) The Commission acknowledged, in recital (252) above that Indian export prices to some third countries are above the export prices to the Union. Nevertheless, prices to some other export markets, that are important to the Indian exporting producers, are lower than the prices to the Union. Moreover, as explained in section 4.3.1 above, the Indian exports gained market share in the Union over the period considered. Therefore, for the reasons set out above, the Commission concluded that this claim was unfounded.

(267) In view of the above, the Commission concluded that the expiry of the measures would in all likelihood result in a significant increase of dumped and subsidized imports from India at prices undercutting the Union industry prices, and therefore would aggravate the economic situation of the Union industry. It is highly likely that this would lead to a recurrence of material injury and as a consequence, the viability of the Union industry would be at serious risk.

(268) In accordance with Article 21 of the basic Regulation, the Commission examined whether maintaining the existing anti-dumping measures would be against the interest of the Union as whole. The determination of the Union interest was based on an appreciation of all the various interests involved, including those of the Union industry, importers, distributors and users.

(269) All interested parties were given the opportunity to make their views known pursuant to Article 21(2) of the basic Regulation.

(270) The Union industry is composed of five groups producing graphite electrodes in the Union. All groups cooperated fully in the investigation. As mentioned in recital (15), the Commission selected a sample of Union producers. The sample consisted of 3 Union producers that provided a reply to the questionnaire. The sample was considered representative for the Union industry.

(271) As set out above, the Union industry did not suffer material injury during the period considered but it is in a fragile situation, as confirmed by the negative trends of the injury indicators. Removing the anti-dumping duties would lead to a likely recurrence of material injury which would be translated in a loss of sales and production volume, as well as market share leading to a loss of profitability and employment.

(272) On the other hand, the Union industry has proven to be a viable industry. After the last expiry review it managed to improve its situation in the fair conditions on the Union market, invest and operating at a profit above the target profit established in the original investigation. The continuation of the measures would prevent the low priced imports from India to flood the Union market and therefore would allow the Union industry to maintain sustainable prices and profitability levels necessary for future investments.

(273) On this basis, the Commission thus concluded that the maintenance of the countervailing measures is in the interest of the Union industry.

(274) Following the final disclosure, the GOI commented that since the anti-subsidy duties already were in place for almost 20 years, the further continuation of the duties would lead to overprotection and would stifle the competition on the EU market. There was no justification for the continuation of the duties for more than 20 years.

(275) The Commission has found evidence that the subsidisation of the Indian exports continued in the RIP. Therefore, even if the measures are in place for a long time, the prolongation of the duties is in line with the rule for protection against subsidized imports. There is also no risk for a negative influence on the competition on the EU market as the duties only counterbalance the subsidisation and restore a fair international competition.

(276) The Commission contacted all known unrelated importers, traders, and users. No interested party came forward.

(277) Given the non-cooperation of any importers, traders or users, no information was available on the impact of the duties on these parties. The original investigation revealed, however, that any impact on other interested parties was not as such that measures had to be considered to be against the Union interest and likewise, the previous expiry review investigation established that the maintenance of the measures would not have a significant negative impact on the situation these parties.

(278) On the basis of the above, the Commission concluded that the maintenance of the countervailing measures in force would not have any significant adverse effects on importers, traders or users.

(279) After disclosure the GOI claimed that the maintenance of the anti-dumping measures in force is not in the interest of the Union. The GOI argued that the fact that sales sourced from GrafTech Iberica were made pursuant to LTAs resulted in an artificially and anti-competitive high selling price which is not indicative of the market price of GES in the Union. The consequences of these artificially high-priced sales would be faced by the downstream users in the Union.

(280) As explained above in recital (194) LTAs are a not uncommon freely entered into commercial practice in which both parties agrees on the terms as they assume they will be beneficial. Therefore, in the Commission’s view the LTAs and the resulting prices cannot be deemed as anti-competitive. Moreover, as explained in recital (235) by the end of 2023 the majority of the LTAs signed by GrafTech Iberica will come to an end and GrafTech Iberica will be in the same situation as the other producers and will be fully exposed to the impact of increasing volumes of dumped imports from India.

(281) Therefore, this claim was dismissed.

(282) Furthermore, the GOI argued that the continuation of duties would not be in interest of the Union as the impact of such duties will be passed down to the customers.

(283) This argument was deemed as unfounded. The interest of the users was assessed, by the Commission, in recitals (276) to (278) and it was concluded that the maintenance of the anti-dumping measures in force would not have any significant adverse effects on users.

(284) On the basis of the above, the Commission concluded that there were no compelling reasons of the Union interest against the maintenance of the existing measures on imports of the product under review originating in India.

(285) Based on the conclusions reached by the Commission concerning the continuation of subsidisation from India, the likelihood of recurrence of injury caused by subsidised imports from India, and the Union interest, the Commission finds that the countervailing measures on imports of certain graphite electrode systems originating in India should be maintained.

(286) The individual company countervailing duty rates specified in this Regulation are exclusively applicable to imports of the product under review originating in India and produced by the named legal entities. Imports of the product under review produced by any other company not specifically mentioned in the operative part of this Regulation, including entities related to those specifically mentioned, should be subject to the duty rate applicable to ‘all other companies’. They should not be subject to any of the individual countervailing duty rates.

(287) A company may request the application of these individual countervailing duty rates if it changes subsequently the name of its entity. The request must be addressed to the Commission (28). 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.

(288) All interested parties were informed of the essential facts and considerations on the basis of which it was intended to recommend that the existing measures be maintained. They were also granted a period to make representations subsequent to this disclosure.

(289) In view of Article 109 of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council (29), 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.

(290) 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

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, 6 June 2023.

For the Commission The President Ursula VON DER LEYEN

(1) OJ L 176, 30.6.2016, p. 55.

(2) Council Regulation (EC) No 1628/2004 of 13 September 2004 imposing a definitive countervailing duty and collecting definitively the provisional duty imposed on imports of certain graphite electrode systems originating in India (OJ L 295, 18.9.2004, p. 4).

(3) Council Regulation (EC) No 1629/2004 of 13 September 2004 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain graphite electrode systems originating in India (OJ L 295, 18.9.2004, p. 10).

(4) Council Regulation (EC) No 1354/2008 of 18 December 2008 amending Regulation (EC) No 1628/2004 imposing a definitive countervailing duty on imports of certain graphite electrode systems originating in India and Regulation (EC) No 1629/2004 imposing a definitive anti-dumping duty on imports of certain graphite electrode systems originating in India (OJ L 350, 30.12.2008, p. 24).

(5) Council Implementing Regulation (EU) No 1185/2010 of 13 December 2010 imposing a definitive countervailing duty on imports of certain graphite electrode systems originating in India following an expiry review pursuant to Article 18 of Regulation (EC) No 597/2009(OJ L 332, 16.12.2010, p. 1).

(6) Commission Implementing Regulation (EU) 2017/421 of 9 March 2017 imposing a definitive countervailing duty on imports of certain graphite electrode systems originating in India following an expiry review pursuant to Article 18 of Regulation (EU) 2016/1037 of the European Parliament and of the Council (OJ L 64, 10.3.2017, p. 10).

(7) OJ C 222, 11.6.2021, p. 24.

(8) Notice of initiation of an expiry review of the anti-subsidy measures applicable to imports of certain graphite electrode systems originating in India (OJ C 113, 9.3.2022, p. 13).

(9) Notice of initiation of an expiry review of the anti-dumping measures applicable to imports of certain graphite electrode systems originating in India (OJ C 113, 9.3.2022, p. 3).

(10) Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ L 176, 30.6.2016, p. 21).

(11) https://tron.trade.ec.europa.eu/investigations/case-view?caseId=2586

(12) Handbook of Procedures (1st April, 2015 – 31st March, 2020) Updated up to 4.8.2015: https://www.mofpi.gov.in/sites/default/files/updated_hbp_2015-2020.pdf

(13) https://www.mofpi.gov.in/sites/default/files/updated_hbp_2015-2020.pdf

(14) To be noted that this scheme was replaced by a new scheme, the RODTEP, which is described in section 3.2.5 below.

(15) http://www.cbic.gov.in/htdocs-cbec/customs/cs-act/formatted-htmls/cs-rulee

(16) Notification No 88/2017-CUSTOMS (N.T.) New Delhi, the 21st September, 2017. http://www.cbic.gov.in/resources//htdocs-cbec/customs/cs-act/notifications/notfns-2017/cs-nt2017/csnt88-2017.pdf

(17) Cus. 20th April, 2001F.NO.605/47/2001-DBK, Government of India, Ministry of Finance, Department of Revenue, Declaration under Rule 12(1)(a)(ii) of Drawback Rule for availing AIR of Drawback. See in particular Sections 2 and 3 of the Declaration under Rule 12(1)(a)(ii) of Drawback Rule for availing AIR of Drawback; available at: http://www.cbic.gov.in/htdocs-cbec/customs/cs- circulars/cscirculars-2001/24-2001-cus

(18) https://content.dgft.gov.in/Website/dgftprod/8c25b521-147e-40e4-afa4-416eafdf3df6/RoDTEP%20Scheme%20Guidelines%20Notification%2019%20dated%2017%20Aug%202021.pdf

(19) The production volume is based on EU-27 data as the United Kingdom ceased to be part of the European Union as from 1 February 2020 and the transition period for the United Kingdom’s withdrawal ended on 31 December 2020.

(20) The consumption is based on EU-27 data, excluding data related to the United Kingdom.

(21) Import price without the customs and AD/AS duties. Source: Eurostat.

(22) Commission Implementing Regulation (EU) 2022/558 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of certain graphite electrode systems originating in the People’s Republic of China (OJ L 108, 7.4.2022, p. 20).

(23) The scope of the Chinese regulation is slightly different than the scope of the present regulation, as it does not include nipples and it also includes graphite electrodes of a kind used for electric furnaces, with an apparent density of 1,5 g/cm3 or more but less than 1,65 g/cm3 and an electrical resistance of 6,0 μΩ.m or less, or with an apparent density of 1,5 g/cm3 or more and an electrical resistance of more than 6,0 μΩ.m but not more than 7,0 μΩ.m, (TARIC codes 8545110010 and 8545110015).

(24) Publicly available annual report of HEG in 2021 and GIL Corporate Presentation of 2021.

(25) HEG, Annual Report 2021, p. 2, 11.

(26) Non-US companies can no longer use US dollars for transactions with Iran. Moreover, if sanctioned for violating the US sanctions it may result for foreign companies not being permitted to open new US bank accounts and facing restrictions on loans, licences and Ex-Im credit.

(27) Publicly available HEG, Conference Call Transcript 2021 provided by the applicants. https://hegltd.com/wp-content/uploads/2021/06/ConferenceCallTranscript08062021.pdf

(28) European Commission, Directorate-General for Trade, Directorate G, Rue de la Loi 170, 1040 Brussels, Belgium.

(29) 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).