Commission Implementing Regulation (EU) 2023/1404 of 3 July 2023 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of stainless steel refillable kegs originating in the People’s Republic of China

4.7.2023	EN	Official Journal of the European Union	L 169/1

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union,

Having regard to 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 ¹ (the ‘basic Regulation’) and in particular Article 9(4) thereof,

Whereas:

1. PROCEDURE

1.1.   Initiation

• (1) On 13 May 2022, the European Commission (‘the Commission’) initiated an anti-dumping investigation with regard to imports of stainless steel refillable kegs originating in the People’s Republic of China (‘China’ or ‘the country concerned’) on the basis of Article 5 of Regulation (EU) 2016/1036 of the European Parliament and of the Council (‘the basic Regulation’). It published a Notice of Initiation in the Official Journal of the European Union ² (‘the Notice of Initiation’).

• (2) The Commission initiated the investigation following a complaint lodged on 31 March 2022 by the European Kegs Committee (‘the complainant’). The complaint was made on behalf of the Union industry of stainless steel refillable kegs in the sense of Article 5(4) of the basic Regulation. The complaint contained evidence of dumping and of resulting material injury that was sufficient to justify the initiation of the investigation.

1.2.   Provisional measures

• (3) In accordance with Article 19a of the basic Regulation, on 15 December 2022 the Commission provided parties with a summary of the proposed duties and details about the calculation of the dumping margins and the margins adequate to remove the injury to the Union industry. Interested parties were invited to comment on the accuracy of the calculations within three working days. Sampled exporting producers jointly submitted comments on pre-disclosure on 19 December 2022. They claimed (i) that the heading of a disclosure table contained a wrong unit of measure, (ii) that the target prices of certain product types did not reflect expected target prices according to their knowledge, and (iii) that certain product types were not included in the injury margin calculations.

• (4) On 12 January 2023, the Commission imposed provisional anti-dumping duties on imports of stainless steel refillable kegs originating in the country concerned by Commission Implementing Regulation (EU) 2023/100 ³ (‘the provisional Regulation’).

• (5) The Commission addressed the sampled exporting producers’ comments under points (i) and (iii) above in recital (259) of the provisional Regulation. Regarding the comment under (ii) above on target prices, the Commission concluded in recital (258) of the provisional Regulation that the comment did not concern the accuracy of the calculations and that it will examine the comment together with all other submissions after the publication of provisional measures (see recital (125)).

1.3.   Subsequent procedure

• (6) Following the disclosure of the essential facts and considerations on the basis of which a provisional anti-dumping duty was imposed (‘the provisional disclosure’), the complainant, sampled exporting producers, the Government of the People’s Republic of China (‘GOC’), and one unrelated importer filed written submissions making their views known on the provisional findings within the deadline provided by Article 2(1) of the provisional Regulation.

• (7) Interested parties had an opportunity to request a hearing with the Commission and/or the Hearing Officer in trade proceedings. No hearing was requested.

• (8) The Commission continued to seek and verify all the information it deemed necessary for its final findings, particularly those highlighted in recitals (140) and (141) of the provisional Regulation, concerning import quantities of kegs from China. When reaching its definitive findings, the Commission considered the comments submitted by interested parties and revised its provisional conclusions where appropriate.

• (9) On 4 May 2023, the Commission informed all interested parties of the essential facts and considerations on the basis of which it intended to impose a definitive anti-dumping duty on imports of stainless steel refillable kegs originating in the country concerned (‘final disclosure’). All parties were granted a period within which they could make comments on the final disclosure.

• (10) On 25 May 2023, the Commission, taking into account certain claims received following final disclosure that had an impact on the outcome of the investigation, disclosed those additional facts and considerations that led the Commission to the modification of the final findings as disclosed previously. Interested parties were also granted a period within which they could make representations subsequent to this additional final disclosure.

• (11) The comments submitted by the interested parties were considered and taken into account where appropriate in this Regulation.

1.4.   Sampling

• (12) No comments were received concerning sampling. Therefore, the conclusions from recital (6) to (11) of provisional Regulation were confirmed.

1.5.   Investigation period and period considered

• (13) The investigation of dumping and injury covered the period from 1 January 2021 to 31 December 2021 (‘the investigation period’). The examination of trends relevant for the assessment of injury covered the period from 1 January 2018 to the end of the investigation period (‘the period considered’).

2. PRODUCT UNDER INVESTIGATION, PRODUCT CONCERNED AND LIKE PRODUCT

2.1.   Product under investigation

• (14) The product under investigation is kegs, vessels, drums, tanks, casks and similar containers, refillable, of stainless steel, commonly known as ‘stainless steel refillable kegs’, with bodies approximately cylindrical in shape, with a wall thickness of 0,5 mm or more, of a kind used for material other than liquefied gas, crude oil, and petroleum products, of a capacity of 4,5 litres or more, regardless of the type of finish, gauge, or stainless steel grade, whether or not with additional components (extractors, necks, chimes or any other component), whether or not painted or coated with other materials (‘kegs’ or ‘the product under investigation’).

• (15) The following products do not fall under the scope of this investigation when imported separately from the product under investigation: necks, spears, couplers or taps, collars, valves and other components of the product under investigation such as extractors, necks and chimes.

2.2.   Product concerned

• (16) The product concerned is the product under investigation originating in China, currently falling under CN codes ex 7310 10 00 and ex 7310 29 90 (TARIC codes 7310100010 and 7310299010) (‘the product concerned’).

2.3.   Like product

• (17) The investigation showed that the following products have the same basic physical and technical characteristics as well as the same basic uses:

• — the product concerned when exported to the Union;

• — the product under investigation produced and sold on the domestic market of China; and

• — the product under investigation produced and sold in the Union by the Union industry.

• (18) In the absence of comments to this Section, the Commission confirmed that those products are therefore like products within the meaning of Article 1(4) of the basic Regulation.

3. DUMPING

• (19) Following provisional disclosure, GOC and two sampled exporting producers commented on the provisional dumping findings.

3.1.   Normal value

3.1.1.   Existence of significant distortions

• (20) Following the publication of the provisional measures, the GOC submitted a number of observations on the application of Article 2(6a) of the basic Regulation in the current investigation.

• (21) First, the GOC pointed out that the Report ⁴ is, in its view, factually and legally flawed and that decisions based on it, lack legitimacy. On the factual side, the Report is, according to the GOC, misrepresentative, one-sided and out of touch with reality. Moreover, the GOC considered that the fact that the Commission issued country reports for a few selected countries raises concerns about most favoured nation (‘MFN’) treatment. Further, relying by the Commission on the evidence in the Report is, in the GOC’s view, not in line with the spirit of fair and just law, as it provides unfair advantages to the Union industry and as it effectively amounts to judging the case before trial.

• (22) The Commission disagreed. The Commission noted that the Report is a comprehensive document based on extensive objective evidence, including legislation, regulations and other official policy documents published by the GOC, third party reports from international organisations, academic studies and articles by scholars, and other reliable independent sources. It was made publicly available since December 2017 so that any interested party would have had ample opportunity to rebut, supplement or comment on the facts and the evidence on which it is based, and neither the GOC nor other parties have submitted arguments or evidence rebutting the sources included in the Report. Rather than the Commission not acting in the spirit of fairness and justice, it was therefore the GOC which failed to make use of the procedural rights available to it. Indeed, as noted in recital (24) of the provisional Regulation, the GOC did not reply to the questionnaire on the alleged significant distortions and thus decided not to cooperate with the investigation in this regard. In view of this non-cooperation, the Commission informed the GOC that it would use facts available within the meaning of Article 18 of the basic Regulation for the determination of the existence of the significant distortions in China. The Commission invited the GOC to submit its comment on the application of Article 18 of the basic Regulation. No comments were received.

• (23) Concerning the GOC’s claim regarding the violation of the MFN treatment, the Commission recalled that, as provided for by Article 2(6a)(c) of the basic Regulation, a country report shall be produced for any country only where the Commission has well-founded indications of the possible existence of significant distortions in a specific country or sector in that country. Upon the entry into force of the provisions of Article 2(6a) of the basic Regulation in 2017, the Commission had such indications of significant distortions for China. The Commission also published a report on distortions in Russia in 2020, and, where appropriate, other reports may follow. Furthermore, the Commission recalled that the reports are not mandatory for the application of Article 2(6a) of the basic Regulation. Article 2(6a)(c) of the basic Regulation describes the conditions for the Commission to issue country reports, and according to Article 2(6a)(d) of the basic Regulation the complainants are not obliged to use the report, nor is the existence of a country report a condition to initiate an investigation under Article 2(6a) of the basic Regulation. According to Article 2(6a)(e) of the basic Regulation, sufficient evidence proving significant distortions in any country brought by complainants fulfilling the criteria of Article 2(6a)(b) of the basic Regulation is sufficient to initiate the investigation on that basis. Therefore, the rules concerning country-specific significant distortions apply to all countries without any distinction, and irrespective of the existence of a country report. As a result, by definition the rules concerning country distortions do not violate the most favoured nation treatment.

• (24) Regarding the argument that the Report was outdated, the Commission noted in particular that the main policy documents and evidence contained in the Report, including the relevant five-year plans and legislation applicable to the product under investigation were still relevant during (at least part of) the investigation period, and that no parties have proven that this was no longer the case. In any event, once China started publishing new five-year plans throughout year 2021, of which many were only made public in the second half of the year, the Commission took them into account in its analysis, as summarised above. Consequently, the GOC’s claim could not be accepted.

• (25) Second, the GOC argued that constructing the normal value in accordance with Article 2(6a) of the basic Regulation is inconsistent with the Anti-Dumping Agreement (‘ADA’), in particular with Article 2.2. of the ADA which provides an exhaustive list of situations where the normal value can be constructed, the “significant distortions” not being listed among such situations. Moreover, using data from an appropriate representative country is, according to the GOC, inconsistent with GATT Article VI.1(b) and Article 2.2.1.1. of the ADA which require using the cost of production in the country of origin plus a reasonable amount for administrative, selling and general costs and for profits when constructing the normal value.

• (26) The Commission considered that the provisions of Article 2(6a) of the basic Regulation are fully consistent with the European Union's WTO obligations. It is the Commission’s view that, in accordance with the relevant WTO jurisprudence, the provisions of the basic Regulation that apply generally with respect to all WTO Members permit the use of data from a third country, duly adjusted when such adjustment is necessary and substantiated. The existence of significant distortions renders costs and prices in the exporting country inappropriate for the construction of normal value. In these circumstances, Article 2(6a) of the basic Regulation envisages the construction of costs of production and sale on the basis of undistorted prices or benchmarks, including those in an appropriate representative country with a similar level of development as the exporting country. Therefore, the Commission rejected this claim.

• (27) Third, the GOC argued that the Commission’s investigating practices under Article 2(6a) of the basic Regulation are inconsistent with WTO rules insofar as the Commission, in violation of Article 2.2.1.1. of the ADA, disregarded records of the Chinese producers without determining whether those records are in accordance with the generally accepted accounting principles in China and whether they reasonably reflect the costs associated with the production and sales. The GOC recalled in this connection that the Appellate Body in EU – Biodiesel (‘DS473’) and the Panel Report in European Union – Cost Adjustment Methodologies II (Russia) (‘DS494’) asserted that according to Article 2.2.1.1 of the ADA, as long as the records kept by the exporter or producer under investigation correspond – within acceptable limits – in an accurate and reliable manner, to all the actual costs incurred by the particular producer or exporter for the product under consideration, they can be deemed to “reasonably reflect the costs associated with the production and sale of the product under consideration” and the investigating authority should use such records to determine the cost of production of the investigated producers. Moreover, by using the data from the appropriate representative country, the Commission has, in GOC’s view, disregarded its obligation to arrive at the cost of production in the country of origin.

• (28) As explained in recitals (32) to (58) of the provisional Regulation, the Commission concluded that it is appropriate to apply Article 2(6a) of the basic Regulation given the existence of significant distortions within the meaning of point (b) of that Article. The exporting producers were given the opportunity to comment on the appropriateness of the application of the Article 2(6a), but provided no comments. Therefore whether the Chinese companies records were kept in accordance with the generally accepted accounting principles of China, or whether the records reasonably reflected the costs associated with the production and sale of the product under investigation in China, does not affect the conclusion concerning the application of the methodology under Article 2(6a) of the basic Regulation. The Commission reiterated in this connection that the WTO Appellate Body explicitly clarified in DS473 that WTO law permits the use of data from a third country, duly adjusted when such adjustment is necessary and substantiated. In addition, with respect to DS494, the Commission recalled that both the EU and the Russian Federation appealed the findings of the Panel, which are not final and therefore, according to standing WTO case-law, have no legal status in the WTO system, since they have not been adopted by the Dispute Settlement Body. In any event, the Panel Report in that dispute specifically considered the provisions in Article 2(6a) of the basic Regulation to be outside the scope of that dispute. The Commission therefore rejected the claim.

• (29) Fourth, the GOC submitted that the Commission should be consistent and fully examine whether there are market distortions in the representative country. Readily accepting the representative country’s data without such evaluation represents “double standards”. The GOC pointed out that under the EU law, the Commission is obliged to use undistorted prices to construct normal values. Therefore, the Commission should, in GOC’s view, take the initiative to investigate and prove the existence or non-existence of distortions in the representative countries, rather than passively waiting for the parties involved in the case to submit evidence. The GOC further submitted that the Commission should examine whether there are market distortions in the EU domestic market, not least because there are allegedly widespread situations within the EU that may raise concerns for the so-called "market distortions".

• (30) In response to this argument, the Commission recalled that, in accordance with Article 2(6a)(a) of the basic Regulation, it proceeds to construct the normal value on the basis of chosen data other than domestic prices and costs in the exporting country only where it establishes that such data is the most appropriate to reflect undistorted prices and costs. In this process, the Commission is bound to use only undistorted data. In that respect, far from waiting passively, the Commission invites interested parties to comment on the proposed sources for the determination of the normal value in the early stages of the investigation. The Commission’s ultimate decision as to which undistorted data should be used to calculate the normal value takes full account of those comments. As to the GOC’s request for the Commission to evaluate possible distortions in the EU’s internal market, the Commission failed to see the relevance of this point in the context of assessing the existence of significant distortions in accordance with Article 2(6a) of the basic Regulation. Accordingly, the Commission rejected these arguments.

3.1.2.   Representative country

• (31) In the provisional Regulation, the Commission selected Brazil as the representative country and used the financial data of one company, Metalurgica Mococa SA, for the constructed normal value in accordance with Article 2(6a)(a) of the basic Regulation. The details on the methodology used for the selection were set out in the First and Second note made available to parties in the open file on 20 July 2022 and 19 September 2022 (‘First Note’ and ‘Second Note’), and in recitals (59) to (95) of the provisional Regulation.

• (32) Following the publication of the provisional Regulation, the two sampled exporting producers reiterated their claim that Brazil did not meet the criteria laid down in Article 2(6a)(a) of the basic Regulation, which stated that there must exist undistorted prices or benchmarks in the appropriate representative country, because:

• — Brazil had allegedly applied distortive measures on imports of the main raw materials used in kegs production (such as anti-dumping duties on stainless steel flat rolled products originating in China and much higher import tariffs on the three main raw materials for production of kegs than many other countries), which lead to the overstated prices of these materials in the domestic market of Brazil and had therefore distorted the prices;

• — the export quotas on stainless steel flat rolled products towards the United States allegedly caused the unbalanced trade flow and thus influenced the price level of this material in Brazil;

• — the high share of imports from China of the main raw materials used in kegs production has exacerbated the distortive effect on the price in Brazil.

• (33) In comparison, these parties claimed that Malaysian market was less distorted by the protective measures and had a lower share of Chinese imports.

• (34) The Commission already replied in recital (70) of the provisional Regulation that the anti-dumping duties towards China and the export quotas towards the United States did not seem to be relevant factors in establishing a benchmark price for the raw material. It noted in recital (71) that the level of import duties is only one of the elements to assess whether a certain market is open or protected and that no additional evidence was provided to show that the Brazilian market was distorted for the raw materials concerned. The Commission also noted in recital (72) that the share of Chinese imports of the main two raw materials (stainless steel coil and spears) was the lowest in Brazil when comparing with other potential representative countries, where kegs were produced.

• (35) In addition, no evidence was provided by these parties that any of these measures or the share of Chinese imports in Brazil affected the reliability of the domestic prices. Second, analysis of the import data for Brazil showed that the import prices of stainless-steel coil from all countries excluding China to Brazil, was rather stable over the last ten years (around 1.83 EUR/kg) and at the same level or even lower than in Malaysia (around 1.88 EUR/kg). Therefore, there was no evidence to conclude that anti-dumping duties on Chinese imports affected the price level of other imports into Brazil, or that any other measures led to overstated prices in Brazil in comparison with Malaysia.

• (36) Based on this analysis and the lack of evidence presented, the claims of the parties were rejected.

• (37) The sampled exporting producers further claimed that the methodology used by the Commission when selecting a representative country gave preferential value to the criterion of the existence of production of the product under investigation and did not consider the quality of the readily available data. This was especially relevant since the Commission did not find appropriate financial data of the kegs producers identified in Brazil, thus leading to the use of financial data from a producer of metal cans, packing products and containers rather than kegs. At the same time, the exporting producers provided evidence of a steel drum producer in Malaysia ⁵, i.e. a similar product to kegs, along with its audited accounts in the IP, stressing that only such detailed financial statements would be sufficient to accurately calculate the selling general and administrative expenses (‘SG&A’) and profits. The Commission should have therefore given an equal consideration to Malaysia as a potential representative country.

• (38) The sampled exporting producers added that the Brazilian company identified by the Commission did not even manufacture products of any similarity to kegs, but light metal packing, classified under NACE ⁶ code 2592. The alleged differences between the two products resided in the material used, the form, the size and the purpose of the final product, since the light metal packing was made from the light metal to preserve food or drinks for the retail sales, while kegs (produced from stainless steel) or drums (produced from heavy metal) were containers to transport liquids, usually not for the retail sales. The classification of Brazilian light metal packing producer and the sampled Chinese exporting producers under the same NACE code 2592 was allegedly unclear and incorrect due to the different material used, the form, the size and the purpose of the final product.

• (39) In accordance with Article 2(6a)(a) of the Basic Regulation, the constructed normal value should include the corresponding costs of production and sale in an appropriate representative country of a similar level of economic development. The Commission considered the existence of production of the product under investigation a crucial element when assessing the appropriateness of potential representative countries. This is a relevant indicator that all or at least the most important factors of production are present in that country, and hence can be used to construct the totality or majority of the undistorted cost of production. If there is no production of the product under investigation in a certain country, there will be a lower likelihood that all or most of the factors of production will be present in that country. This was confirmed in this case, where the data on the factors of production available in Brazil represented around 75 % of the constructed normal value. Once the Commission established that Brazil was appropriate on this basis, as there were no companies producing kegs with readily available and reasonable financial indicators, it considered it appropriate to source this financial data by reference to Brazilian companies in the same sector and/or producing a similar product. This is to ensure the use of a coherent set of indicators affected by the same market conditions in the same representative country, that is Brazil in this case. The parties also did not provide evidence why the selected broader product category would not be appropriate to determine the SG&A and profits.

• (40) The Commission also did not agree that the steel drums produced by the proposed Malaysian company were a more appropriate product category than the light metal packing producer chosen. Actually, the Commission identified companies in the potential representative country by the industrial sector defined by NACE code. The fact that the two sampled Chinese exporting producers were classified under the same NACE code as the Brazilian light metal packing producer was a good indicator of the similarities of their economic activity. To the contrary, the proposed steel drum producer in Malaysia was classified under the NACE Code 2511, manufacture of metal structures. The statistics produced based on NACE are comparable at world level and this system is used to classify economic activities into codes so that businesses can be associated with them based on the resources used, the production process, as well as the products or services created. Indeed, the products produced by the proposed steel drum producer are of a large capacity ⁷ and are therefore appropriate for industrial packaging and not food storage, unlike kegs or light metal packaging products. Therefore, the size and the purpose of the final product of the steel drum producer in Malaysia is arguably less similar to kegs than the light metal packaging produced by the Brazilian company.

• (41) Based on this analysis and the lack of evidence presented the claims of the parties were rejected.

• (42) Following final disclosure, the sampled exporting producers repeated their claims made at the provisional stage regarding the selection of the representative country without presenting any further evidence. They also argued that the Commission did not provide data for its statement that the import price of stainless-steel coil from all countries excluding China was rather stable over the last ten years. The Commission considered that it sufficiently disclosed the average import price of stainless-steel coil from all countries excluding China, which was at around 1.83 EUR/kg ⁸ and rather stable over the last ten years, in the final disclosure recital (33).

• (43) The sampled exporting producers claimed that in any event, the import price data as referred to in recital (42) could not demonstrate that there was no effect of the anti-dumping duties ⁹ on the price of this raw material in Brazil, since the import price could have decreased over the years if there were no anti-dumping measures, while the measures were imposed for almost ten years. The Commission notes that the exporting producers failed to clarify how the import prices would be affected by the anti-dumping measures, nor did they provide any substantiated estimate of the impact. This claim therefore did not invalidate the reasons that led to the selection of the representative country as explained above. In any event the Commission recalled that, as mentioned in recital (35), this import price was lower than the average import price in Malaysia (the representative country suggested by the parties). The claims of the parties were therefore rejected.

• (44) The same parties disagreed with the Commission’s view on the importance of existing production of the product under investigation when assessing the appropriateness of potential representative countries. They claimed that the stainless-steel coil is an industrial product commonly available worldwide, while for the other two raw materials (spears and necks), the Commission used import statistics relating to the residual codes of the customs nomenclature (described as “other”), instead of the codes describing specific products. Therefore, there was no advantage of selecting Brazil over Malaysia, particularly considering the fact that the SG&A and profit would be based on the financial data of a Brazilian company producing similar product to kegs, which would be the same, if Malaysia was selected as a representative country.

• (45) The Commission considered that basing the cost on a country producing the product under investigation was a crucial element when assessing the appropriateness of potential representative countries, since all the costs of the producers producing that product would be affected by the same market conditions. The fact that nomenclature codes categorise products under description of “other” does not make them less specific, but only separates them from the other defined descriptions under the same code category. The claims of the parties were therefore rejected.

3.1.3.   Sources used to establish undistorted costs for factors of production

Spears

• (46) Following the publication of the provisional Regulation, the two sampled exporting producers argued that using only one HS code 848190 for spears (a valve that is used to regulate the gas pressure inside a keg), as done at the provisional stage, was not correct. They argued that the Commission should have used HS 848180 or both codes, since the European spear producers exported these products to Chinese kegs producers under both codes. Also, they argued that a spear is a single unit, instead of a part of a beer dispensing unit. Moreover, spears are sold per piece. The fact that HS code 848180 in the nomenclature of Brazil uses piece/item as quantity measurement whilst that of HS 848190 is kilogram indicates that the price of the former HS code would be a more appropriate benchmark.

• (47) The investigation revealed that the two sampled exporters imported spears from the Union, one under HS 848180 and the other under HS 848190. In order to select a similar raw material to the one used by the sampled exporting producers, the Commission used the descriptions of the Brazilian statistics to determine under which codes spears may fall in the import data of the selected representative country. Therefore, given the fact that there are different types of keg spears, and considering their interface and degree of interdependence with the dispensing equipment, the Commission decided to use narrower eight-digit codes covering part of both HS codes (HS 848190 and HS 848180) under which spears may fall, namely commodity codes 84819090 (parts of taps, other appliances for canalizations, etc., which was the only code used at the provisional stage), as well as 84818031 (other valves for equipment for gas with a working pressure of less than 50 Megabar, with thermoelectric safety) and 84818039 (other valves used in equipment by gas).

• (48) Following final disclosure, the sampled exporting producers repeated their claims made at the provisional stage regarding the classification of spears without presenting any further evidence. They added that the codes 84818031 and 84818039 were not the correct ones to use for spears, because the codes described gas valves, while valves used in spears were the valves for a liquid beer. The parties concluded that, since the classification of spears was questionable and the import statistics in Brazil was unreliable, the only appropriate benchmark for spears would be their own purchase price from the Union spears’ producers, as provided in their questionnaire replies.

• (49) As stated in the recital (84) of the provisional Regulation, the spear used in a keg is designed for the maintenance of the pressurized gas within the keg and for the dispense of the carbonized liquid ensuring its conditioned flow. This function is mainly performed by the mechanism included in the body of the keg spear incorporating one or two valves. Therefore, the Commission considered that a spear could be part of the gas operated beer dispensing unit covered by the scope of the HS heading 8481, under which the Brazilian customs nomenclature codes 84818031 and 84818039 fall.

• (50) Furthermore, even if between 45 % and 60 % of spears were purchased by the sampled exporters from the Union, no relevant evidence (such as the contract of purchase or the invoices) in support of the claim for undistorted purchase prices, within the meaning of Article 2(6a)(a) of the basic Regulation, was provided in the replies of the sampled exporters, as required in the questionnaire. Likewise, none of the sampled exporters distinguished the spears used, whether they were sourced domestically or in the Union, in their cost data, even if the questionnaire provided such opportunity. The claims of the parties were therefore rejected.

Labour cost

• (51) At the provisional stage, the Commission used ILO ¹⁰ statistics to establish the undistorted labour cost for the actual labour hours in Brazil. However, the sampled exporting producers identified flaws in the adjustments made for the inclusion of social charges in the labour cost, implying that the labour cost was incorrectly calculated. In addition, they claimed that the ILO statistics showed 39,09 hours worked per week in Brazil, whereas the other sources of information pointed to 44 hours worked per week. According to them, the discrepancy was due to ILO having already deducted public holidays and non-working days on an annual basis. Therefore, they suggested that either the Commission should not have adjusted the ILO weekly working hours by the vacation and public holidays, or it should have used 44 weekly working hours as the basis for calculating the benchmark for labour cost.

• (52) The Commission therefore performed a more detailed review of the ILO benchmark. The Commission’ further analysis of labour cost showed that the ILO earnings data set was understated, as it did not take into account the fact that Brazilian workers received thirteen months of salary per working year, and that it only provided data for the average labour cost in Brazil in the manufacturing sector, regardless of the size or/and specific activity of the company.

• (53) On the other hand, the Commission found that the Brazilian Institute of Geography and Statistics (IBGE) ¹¹ recorded detailed labour costs, including full social adjustments (thus addressing the initial claim of the sampled exporting producers), in a central company register with data per detailed economic activity (manufacture of metal packing) and per company size relevant to the size of the two sampled exporting producers in China. The Commission therefore decided to use the latest data available for 2020 of the IBGE, adjusted by the labour cost index for 2021 for the definitive stage of the investigation to calculate the annual labour cost.

• (54) The Commission also reviewed the weekly working hours provided in ILO statistics and the sources identified by the parties ¹². One of the two sources indicated a maximum 44 working hours per week, while the other source indicated 44 standard working hours per week. Both sources were private and provided the average number of hours applicable in Brazil, without specifying a sector of activities. The revised ILO statistics actually provided 40,21 mean weekly hours actual worked ¹³ in the manufacture of fabricated metal products (except machinery and equipment), which is the sector relevant to the two sampled exporting producers. Thus, the Commission considered the ILO statistics as more appropriate to establish the weekly hours actually worked.

• (55) The Commission calculated the annual hours actually worked by multiplying the weekly labour hours actually worked with the number of weeks in a year, and then deducting the days not worked (vacations, national holidays, optional, but not mandatory holidays, regional holidays). This approach was taken instead of the one suggested by the parties, as otherwise, all the weeks of the year would have been considered as having five actual working days, which does not correspond the reality of actual work.

• (56) Consequently, the annual labour cost established was divided by the annual labour hours actually worked to calculate the benchmark labour cost of the actual working hour in Brazil.

• (57) Following final disclosure, the sampled exporting producers claimed that the source used for the labour cost in Brazil (IBGE) was not appropriate, since the statistical method (enterprise survey) and the type of data (survey data) used by IBGE made the quality of the statistics dependant on the willingness of the companies to respond to the survey, which, in the absence of details about the companies in the survey, rendered the representativeness of the data for the relevant industry sector questionable.

• (58) The Commission noted that IBGE was an entity run by the federal administration, under the Ministry of Economy and the main provider of data and information about the country ¹⁴. It therefore considered that the data collected and the methods used by the entity were sufficiently reliable and serving as a primary source of statistical data in Brazil. The availability of the details about the companies participating in a particular survey were not considered necessary to confirm the reliability of such institution, the statistical methods used, and the data collected by it. The claim of the parties was therefore rejected.

• (59) Following final disclosure, the sampled exporting producers argued that, based on questions in the questionnaire of the survey used by IBGE, salaries and social charges were excessive and unrepresentative, because they included cost for staff not linked to the production (non-employee personnel, such as owner, partners, unpaid family members). Also, the number of employees reported in the survey was for the end of the year, instead of the average of the year. Given that the year 2020 was affected by COVID-19 pandemic, many employees were laid off due to low economic activities, therefore dividing the yearly labour cost by the number of employees at the end of the year inflated the labour cost per employee.

• (60) Following the comments received, the Commission reviewed IBGE data and excluded the salaries and social charges for staff that was not linked to the production. Also, based on the change in the unemployment rate at the beginning and the end of the year 2020 ¹⁵, the Commission calculated the average number of employees in 2020, which was then used in its calculation.

• (61) The same parties also argued that, based on the definition provided on ILO website ¹⁶, the public holidays and non-working days were already deducted on an annual basis and there was no need to adjust the ILO weekly working hours statistics by the vacation and public holidays. Otherwise, the Commission shall use 44 weekly working hours as a basis for calculating the benchmark labour cost.

• (62) The Commissions reviewed its calculation. The annual hours actually worked were calculated by multiplying the weekly labour hours actually worked (as provided in the ILO) with the number of weeks in a year without deducting the days not worked.

Import duties applied to the purchase of raw materials

• (63) The sampled exporting producers argued that adding Brazilian import duties to the import prices of raw materials was incorrect, as the purpose of the reference to a representative country is to establish the undistorted prices the Chinese exporting producers should have paid, which requires the application of the corresponding Chinese import duty rate.

• (64) The normal value should reflect the undistorted price of the raw materials in the representative country (in this case Brazil). It should therefore reflect the price that a producer of kegs would pay in Brazil for the raw materials delivered at the factory gate. If import duties in Brazil were not added, the resulting benchmark would not reflect the undistorted price on the Brazil market, but merely the average CIF price in the countries exporting the raw materials in question. This would be contrary to the Article 2(6a)(a) of the basic Regulation. The argument of the parties was therefore rejected.

• (65) Following final disclosure, the sampled exporting producers repeated their claims made at the provisional stage regarding the import duties applied to the purchase of raw materials without presenting any further evidence. The arguments were already rejected in the previous recital.

• (66) Considering all the information submitted by the interested parties, the following factors of production and their sources were identified with regard to Brazil in order to determine the normal value in accordance with Article 2(6a)(a) of the basic Regulation:

Table 1

Factors of production of kegs

Factor of Production	Commodity Code	Undistorted value
Raw materials	Raw materials	Raw materials
Stainless Steel Coil	721933	16,73 CNY/Kg
Spear	84819090 , 84818031 and 84818039	386,99 CNY/Kg
Neck	73269090	100,27 CNY/Kg
Scrap	720421	8,86 CNY/Kg
Labour	Labour	Labour
Labour cost of the actual working hour in manufacture of metal packaging, companies with 100 to 499 employees	N/A	48,41 – 54,32 CNY/hour (depending on the company-specific situation)
Energy	Energy	Energy
Electricity	N/A	0,7475 CNY/kWh

3.1.4.   Calculation of the normal value

• (67) The details of the calculation of the normal value were set out in recitals (96) to (100) of the provisional Regulation.

• (68) The two sampled exporting producers claimed that the Brazilian light metal packing producer's profit of 24,4% was not reliable for constructing the normal value due to it being high when compared to the Union's kegs producers target profit of 12%. They proposed to use instead the profit of 12.2% as recorded by a Malaysian steel drums producer, because they considered it to be more reliable as it closely matched the target profit of the Union industry.

• (69) The Commission noted that the target profit of the Union producers is not comparable to the profit of companies in a representative country, be it Brazil or Malaysia. First, the context of and the objective with which these respective profits are established is different. The profit in the representative country is used as a proxy for an undistorted profit that would have been achieved in a country not affected by significant distortions. This country must have a level of development similar to the country concerned affected by significant distortions. By contrast, the Union industry target profit is the profit normally achieved in the Union market by the industry under normal conditions of competition, that is in the absence of dumped imports. In other words, the target profit is based on the profit level of the Union industry during the years before the injurious dumped imports, while the profit of a company in a representative country is based on the realised profit during a specific financial year. Therefore, the variables to establish target profit of the Union industry and the benchmark profit in a representative country are different. Furthermore, these profits are calculated in different ways. The Union industry’s target profit is expressed on the turnover, whereas the profit in the representative country is expressed on the cost of goods sold. As a result, these profit levels are incomparable, and the fact that the profit of the proposed Malaysian producer is closer to the Union industry’s target profit is thus irrelevant. The claim of the parties was rejected.

• (70) The two sampled exporting producers also claimed that the lack of detailed information in Orbis ¹⁷ concerning ‘other operating expenses’ used in the calculation of SG&A and profit rendered the Orbis data unusable. They added that the exact source of the Orbis data concerning the Brazilian producer identified by the Commission was unknown, making the Orbis data less reliable than the audited accounts of the proposed Malaysian steel drums producer.

• (71) The Commission pointed out that the provisional disclosure provided information on the source of the Orbis data of the Brazilian producer, which was local official registry information based on the local GAAP ¹⁸. Additionally, the glossary of the data and ratios in Orbis provides a definition of other operating expenses as “all costs not directly related to the production of goods sold such as commercial costs, administrative expenses, etc. and depreciation of those costs”, thus clarifying the concerns of the parties.

• (72) At the final stage of the investigation, the Commission also corrected a clerical error concerning the calculation of the SG&A and profit of Metalurgica Mococa SA in Brazil. As a result, the SG&A and profit expressed as a percentage of the costs of goods sold and applied to the undistorted costs of production, amounted to 8,67 % and 22,52% respectively.

• (73) On that basis, the Commission constructed the normal value per product type on an ex-works basis in accordance with Article 2(6a)(a) of the basic Regulation.

• (74) Following final disclosure, the sampled exporting producers repeated their claims made at the provisional stage regarding the profit level used by the Commission without presenting any further evidence. The arguments were already rejected in the recital (69).

3.2.   Export price

• (75) The details of the calculation of the export price were set out in recitals (101) to (103) of the provisional Regulation. Since no comments were received, the Commission confirmed its provisional findings.

3.3.   Comparison

• (76) The details concerning the comparison of the normal value and the export price were set out in recitals (104) to (105) of the provisional Regulation. Since no comments were received, the Commission confirmed its provisional findings.

3.4.   Dumping margins

• (77) As described in recitals (32) - (73), following claims from interested parties and further investigation, the Commission revised and recalculated the dumping margins.

• (78) As explained in recital (111) of the provisional Regulation, the Commission concluded at provisional stage that the cooperation by the exporting producers was low. However, as explained in recital (97), the Commission established at definitive stage that it was unlikely that other significant Chinese exporting producers were active on the Union market. Consequently, the Commission concluded at definitive stage that the level of cooperation was high (above 90 %) and considered it appropriate to establish the dumping margin for non-cooperating exporting producers at the level of the highest dumping margin found for a sampled exporting producer.

• (79) Following the changes made after the final disclosure, the definitive dumping margins expressed as a percentage of the cost, insurance and freight (CIF) Union frontier price, duty unpaid, are as follows:

Company	Definitive dumping margin
Penglai Jinfu Stainless Steel Products Co., Ltd	85,5 %
Ningbo Major Draft Beer Equipment Co., Ltd	67,3 %
Other cooperating companies	77,9 %
All other companies	85,5 %

4. INJURY

4.1.   Definition of the Union industry and Union production

• (80) According to the information available to the Commission, the like product was manufactured by eight producers in the Union during the investigation period. They constitute the ‘Union industry’ within the meaning of Article 4(1) of the basic Regulation.

• (81) The total Union production during the investigation period was established at around 1 926 200 kegs. The Commission established this figure on the basis of the reply to the macroeconomic questionnaire provided by the complainant and the verified questionnaire replies of the sampled Union producers. As indicated in recital (7) of the provisional Regulation, sampled Union producers represented around 73 % of the estimated total Union production of the like product.

• (82) In the absence of any comments with respect to the definition of the Union industry and its levels of production, the conclusions in recitals (113) and (114) of the provisional Regulation were confirmed.

4.2.   Additional investigative steps following the provisional measures

• (83) Following the imposition of provisional measures, as explained in recital (8), the Commission continued to seek and verify the information highlighted in recitals (140) and (141) of the provisional Regulation, concerning import quantities of kegs from China. In that context and as described in sections 4.2.1, 4.2.2, 4.2.3, 4.2.4. and 4.2.5, the Commission: (i) requested detailed customs data from the Custom Authorities of Spain and Romania on imports of goods under CN codes relevant for kegs; (ii) requested data on exports of kegs in 2022 from cooperating sampled and non-sampled exporting producers to reconcile them with the more precise official import statistics available for the post-initiation period; (iii) sent out additional data requests to the five major importers identified in the complaint, asking for information on their suppliers and purchase volumes for the entire period considered; (iv) verified the non-sampled cooperating exporting producers’ sales to the EU during the period considered; and (v) sought to collect more information concerning the small breweries after provisional stage.

4.2.1.   Analysis of custom data from the Custom Authorities of Spain and Romania

• (84) The customs data from Romania and Spain were analysed using the same methodology as for the original analysis, described in recital (127) of the provisional Regulation. While this additional analysis allowed the Commission to refine the estimation of the imports of kegs into the Union based on the Customs data analysis, the inclusion of Spain and Romania did not have a major impact on the overall import quantities or trends of the estimated quantities.

4.2.2.   Comparison of exporting producers’ post-IP sales data with Surveillance ¹⁹

and the Article 14(6) databases ²⁰ imports data.

• (85) As explained in recital (83), the Commission requested data on exports of kegs in 2022 from all six cooperating (both sampled and non-sampled) exporting producers, in order to compare those figures with the data at TARIC code level ²¹ on imports of kegs and thus check whether there may be some exporters selling kegs into the Union market that were so far unknown in the investigation. All six cooperating exporting producers provided the requested data.

• (86) Data at TARIC code level on imports of kegs are available in Surveillance database as of 14 May 2022, i.e., since the day following the initiation of the investigation. In addition, there is an inevitable time lag from the date on which an exporting producer registers a sale to the date on which that shipment reaches Union customs. The Commission considered that the average time lag was 30 days, based on the information provided by the exporting producers ²². The Commission thus compared the reported sales data for each month, starting with May, with the Surveillance data on imports for the following month.

• (87) Applying the abovementioned comparison methodology, the total sales of kegs to the Union reported by the cooperating exporting producers in the period of May–September 2022 were around 1 % higher than the total imports recorded in the Surveillance database for the period June–October 2022, on per kilogram basis. Comparing in the same way the sales for May–December 2022 with the Surveillance data for June 2022–January 2023 showed even higher volumes of sales declared by the exporting producers compared to the imports recorded in the Surveillance database which seems to be due to the time lag in recording imports at the Union customs from when they were recorded as sales by the exporting producers.

• (88) Based on this exercise the Commission concluded that the cooperating exporting procedures were the only exporting producers selling kegs to the Union at least from the beginning of May 2022.

4.2.3.   Data from unrelated importers and small breweries

• (89) Furthermore, the Commission again contacted the five major importers identified in the complaint ²³, asking for their suppliers and purchase volumes for the entire period considered.

• (90) Only two out of five importers (KSM Keg and IMEXA) provided the requested data. One importer (My Kegs) asked for a deadline extension to submit the data, and, despite the extension being granted, failed to provide the requested data.

• (91) The analysis of the data submitted by the two abovementioned importers showed that they only purchased kegs from the two sampled and one non-sampled cooperating exporting producers during the period considered. The sales reported by the relevant cooperating exporting producers largely matched the purchases reported by the two importers.

• (92) The data obtained, whilst admittedly not covering all importers, did not reveal exports by an exporting producer that was not cooperating with the investigation.

4.2.4.   Cross-checking import data provided by the cooperating non-sampled exporting producers

• (93) The Commission sought to gain assurances that the non-sampled exporting producers did not under-report their sales volumes to the Union during the period considered. As explained in Section 4.2.2 above, the comparison of the sales data of both sampled and non-sampled cooperating exporting producers with official import statistics available in Surveillance database did not indicate that any of the exporting producers would have under-reported their sales to the Union in 2022. The Commission cross-checked the data provided by the non-sampled cooperating exporting producers’ reported sales to the Union in 2022 with TARIC code level data. Regarding their share of total imports from China as reported during the period considered ²⁴, the Commission cross-checked the data with the cooperating users and importers. On this basis, Commission found no evidence that the data provided by the exporting producers was inaccurate.

4.2.5.   Information concerning small breweries

• (94) No small breweries came forward following the imposition of provisional measures. Therefore, the Commission was unable to obtain any further information from that source on imports from China.

4.2.6.   Conclusion on imports

• (95) From the comparison between the six cooperating exporting producers’ sales data with the data at TARIC code level from Surveillance and the data from unrelated importers and users, it appears that the quantities of kegs which the cooperating exporting producers reported to have sold to the Union market in 2022 are, broadly, the total imports of kegs from China to the Union market during that period. Moreover, the Commission analysed imports under C999 TARIC additional code . TARIC additional code C999 is meant to record imports from the non-cooperating exporting producers. Both the Article 14(6) database as well as in the Surveillance database showed that the imports in question were insignificant for the period January – March 2023. This further confirms that the cooperating exporting producers were likely the main exporting producers of kegs to the Union during the period considered.

• (96) Similarly, the examination of the data from the two importers who responded to the Commission’s requests for data did not uncover the existence of any other exporting producers.

• (97) Considering the above, the Commission could not positively establish that there were significant Chinese producers active on the Union market before the initiation of the case and which would have stopped their exports at the beginning of May 2022, just shortly before the initiation of the case.

• (98) Furthermore, the Commission recalled that its analysis of detailed customs data, as described in recital (127) of the provisional Regulation, was based on certain assumptions. Potential inaccuracies may lie in the “1 keg = 10 kg” conversion formula, as well as the varying degrees of accuracy of goods descriptions in individual Member States’ custom data. In that regard, it is worth pointing out that, with the addition of two more Member States to the customs data analysis (Romania and Spain), Belgian customs data accounted for more than 70 % of the total difference between the lower and the upper figures of potential imports of kegs resulting from the analysis. At the same time, over the period considered, Belgium accounted for a big share of kegs imports out of all the Member States whose customs data the Commission analysed. In the case of the import statistics concerning Belgium, many item descriptions in the declarations were fairly wide and may or may not have been kegs specifically. Therefore, without prejudice to the provisional findings as regards import figures as presented in the provisional Regulation, and following a conservative approach, the Commission decided to base its definitive findings on the sales quantities declared by the six cooperating exporting producers into the Union for the entire period considered.

• (99) As a result, the Commission established the import volumes from the PRC, market shares and Union consumption in this regulation on the basis of export quantities to the Union reported by the six cooperating exporting producers for the period considered.

4.3.   Union consumption

• (100) Union consumption developed as follows:

Table 2

Union consumption (pieces)

	2018	2019	2020	Investigation period
Total Union consumption	3 493 180	2 481 922	1 703 848	941 237
Index	100	71	49	27
Source: Questionnaire replies of Union producers and cooperating exporting producers’ data (see Section 4.4.1)	Source: Questionnaire replies of Union producers and cooperating exporting producers’ data (see Section 4.4.1)	Source: Questionnaire replies of Union producers and cooperating exporting producers’ data (see Section 4.4.1)	Source: Questionnaire replies of Union producers and cooperating exporting producers’ data (see Section 4.4.1)	Source: Questionnaire replies of Union producers and cooperating exporting producers’ data (see Section 4.4.1)

• (101) The Commission established the Union consumption of kegs on the basis of total Union industry’s sales in the Union, plus total imports from China as reported by the six cooperating exporting producers.

• (102) At provisional stage, imports from other third countries to the Union were not taken into account as they were considered negligible. No comments were received on this point. Furthermore, additional data received from two importers after the imposition of provisional measures did not contradict that conclusion. Therefore, the conclusions from the recital (119) of the provisional Regulation were confirmed.

• (103) Using the imports into the Union from China established on the basis of the data reported by the cooperating exporting producers (see Section 4.4.1 below), total Union consumption also showed a decreasing trend during the period considered. Compared to the consumption as published in Table 2 of the provisional regulation, the overall trend in the period 2018-2020 (until the IP) did not substantially change.

• (104) Following the initial 29% drop, the consumption severely diminished during the peak of the Covid-19 pandemic. The lockdowns causing the bar/restaurants closures, heavily reduced the demand for kegs in that period. The overall uncertainty and lack of revenues forced the kegs users (the beverage manufacturers) to postpone their planned kegs purchases.

• (105) The situation continued throughout the investigation period and, as explained in recital (139), the consumption started to improve after the investigation period (as of 2022) as the impact of Covid-19 pandemic diminished and the overall demand for drinks served from the tap increased. As a result, overall demand increased by 122 % in 2022 in comparison with the investigation period to the level slightly below the pre-Covid-19 period (2019).

• (106) No interested parties contested the consumption data following the provisional measures.

4.4.   Imports from the country concerned

4.4.1.   Methodology used to quantify imports from the country concerned

• (107) The product concerned is imported into the Union under two CN codes (ex 7310 10 00 and ex 7310 29 90), depending on the capacity of the keg. Kegs with the capacity of >= 50 litres but <= 300 litres fall under CN code 7310 10 00, while those with the capacity of < 50 litres fall under CN code 7310 29 90 (the ‘relevant CN codes’). These two CN codes also include a broad range of products other than the product under investigation (e.g., cans, tin boxes, feedthroughs for livestock, buckets, fire extinguishers, canisters, containers and tanks for various uses, water bottles, steel barrels, etc.). Thus, establishing imports based on CN codes alone was not possible.

• (108) As explained in section 4.2.5, in view of the evidence on file and the relevant tests based on the post IP data, at the definitive stage the Commission followed the conservative approach assuming that import quantities reported by the cooperating exporting producers correspond to the totality of imports of kegs from China during the period considered. Consequently, the Commission based its definitive findings regarding the import quantity from China on figures reported by the cooperating exporting producers presented in Table 3 below.

Table 3

Imports into the Union (pieces) and market share

	2018	2019	2020	IP
Volume of imports from the country concerned (pieces)	617 607	357 404	224 546	118 460
Index	100	58	36	19
Market share	18 %	14 %	13 %	13 %
Index	100	81	75	71
Source: cooperating exporting producers	Source: cooperating exporting producers	Source: cooperating exporting producers	Source: cooperating exporting producers	Source: cooperating exporting producers

• (109) The development of import volumes and market shares changed compared to the import volumes based on the customs statistics as published in the provisional Regulation in Table 6. The market share of the Chinese imports initially decreased 4 percentage points between 2018 and 2019. It then slightly decreased by one percentage point in 2020 during the outbreak of Covid-19 pandemic and lock downs both in the Union and in China to remained unchanged in the investigation period despite continuing stringent sanitary measures and the container crisis affecting exports from China.

4.4.2.   Prices of the imports from the country concerned: price undercutting and price suppression

• (110) As established in section 4.3.3.3 of the provisional Regulation, in addition to establishing price undercutting, the Commission considered that there was also significant price suppression within the meaning of Article 3(3) of the basic Regulation. Due to the significant price pressure caused by the low-priced dumped imports from Chinese exporting producers, the Union industry was unable to raise the prices throughout the investigation period in line with the development of costs of production and in order to achieve a reasonable level of profit.

• (111) The average Union industry’s sales price decreased by almost 10 % over the period considered. At the same time, the cost of production increased by 16 % over the same period, putting the sales price of the Union industry significantly below its cost of production. Especially in 2020 and in the investigation period, the cost of production increased substantially, while the price had to be kept stable because of the price pressure by Chinese exports. Underselling during the investigation period was above 50%.

• (112) This situation had a clear impact on the Union industry profitability. After starting at 12% in 2018, profitability decreased sharply for the rest of the period, especially in 2020 and during the investigation period.

• (113) The development of these three indicators clearly show that the industry was subject to strong pricing pressure from the Chinese dumped imports, which forced it to sell at prices below the cost of production. As further explained in section 5.1., this caused a clear price suppression for the Union industry.

• (114) After provisional disclosure the two sampled exporting producers and the GOC argued that the Commission did not provide them with sufficiently detailed disclosure of information and explanation on the calculations of their respective undercutting and underselling margins, without providing a rationale for confidential treatment of that information, thus violating their right of defence, the exporting producers reiterated the same comments at final disclosure.

• (115) The Commission noted in that regard that certain data at PCN level (namely average price and quantity sold) were considered confidential not only in order to protect business confidential information of the Union producers to the Chinese exporters but also to protect the confidentiality of the business information of each of the sampled Union producers against each other. Articles 6(7) and 20 of the basic Regulation provide certain rights of information and disclosure to interested parties. However, consistent with Article 19 of the basic Regulation, the principles governing the right to information must be reconciled with the requirements of confidentiality, in particular the obligation for the institutions to respect business secrecy; ²⁵ the protection of business secrets being a general principle of EU law. ²⁶ Furthermore, neither the exporting producers nor the GOC provided any explanation how the allegedly insufficient disclosure would breach their right of defence. Therefore, these claims were rejected as unsubstantiated.

• (116) In the absence of other comments on prices of imports and price undercutting, the Commission confirmed the conclusions set out in recitals (146) to (154) of the provisional Regulation.

4.5.   Economic situation of the Union industry

4.5.1.   General remarks

• (117) Following the imposition of provisional measures, no comments were received, or additional findings made on the following macroeconomic indicators: production, production capacity and capacity utilisation, sales volume, growth, employment and productivity, and recovery from past dumping. Therefore, the Commission confirmed its conclusion set out in recitals (160) to (163), (165), (167) to (169), and (171) of the provisional Regulation.

4.5.2.   Macroeconomic indicators

4.5.2.1.   Sales volume and market share