Commission Implementing Regulation (EU) 2024/804 of 7 March 2024 amending Implementing Regulation (EU) 2023/265 imposing a definitive anti-dumping duty on imports of ceramic tiles originating in India and Türkiye

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 14(1) thereof,

Whereas:

1. Measures in force

• (1) Following an anti-dumping investigation (‘the original investigation’), imports of ceramic tiles originating in India and Türkiye are subject to anti-dumping measures imposed by Commission Implementing Regulation (EU) 2023/265 ² (‘the original Regulation’). The anti-dumping duties applicable to imports from India range from 6,7 % to 8,7 %, whereas the anti-dumping measures applicable to imports from Türkiye range from 4,8 % to 20,9 %.

• (2) Lavish Granito Limited and its related companies came forward at initiation of the investigation and were sampled. As explained in recitals (202) and (208) of the original Regulation, no dumping was found as far as the Lavish Group was concerned. Therefore, Article 1(3) of the original Regulation specified that the anti-dumping duties were not applicable to exports made by companies within the Lavish Group.

2. Request

• (3) On 16 February 2023, Lavish Group and its related companies (‘the applicants’) requested that Silk Ceramics and Luxgres Ceramica LLP (‘Silk and Luxgres’) were included in the list of exporting producers that are part of the Lavish Group (TARIC additional code C903).

3. Analysis of the request

• (4) During the original investigation, the two companies had been found to be part of the Lavish Group, but as the products manufactured by them had not been exported to the Union in the original investigation period (1 July 2020 to 30 June 2021), their names were not listed among the companies belonging to the Lavish Group in Article 1(3) of the original Regulation.

• (5) The Commission reviewed the information supplied by Silk and Luxgres in the context of the original investigation and in the submission of 16 February 2023. It requested and obtained additional information from the parties concerned.

• (6) On that basis, the Commission confirmed that these two companies are related to Lavish Granito Pvt Ltd., Lavish Ceramics, Lakme Vitrified LLP and Liva Ceramics, and that they did not export ceramic tiles manufactured by them to the Union during the original investigation period. It could in addition establish that they had started exporting ceramic tiles manufactured by them to the Union after the original investigation period. The Commission also confirmed that the two companies’ EU sales volumes and prices after the investigation period in no way undermined the conclusions on the Lavish Group’s pricing behaviour reached during the investigation. The Commission also noted that the two companies cooperated in the original investigation, one as a domestic producer/trader and the other as a related producer which started operations after the investigation period, and that they were both considered part of the Lavish Group.

• (7) Given the considerations in the recitals above and in accordance with Article 14(1) of the basic Regulation, the Commission considered it appropriate to amend Article 1(3) of the original Regulation by adding Silk Ceramics and Luxgres Ceramica LLP to the Lavish Group entities listed under TARIC additional code C903.

4. Disclosures

• (8) On 30 August 2023, the Commission disclosed its findings to the applicants and to the Union industry.

• (9) Following a request, hearings were held with the Union industry on 25 October and 1 December 2023 ³, when the Union industry reiterated the comments it had previously made in writing, which are summarised and addressed below, and provided a written post-hearing submission.

• (10) The Lavish Group was notified and invited to provide comments to the Union industry’s post-hearing submission.

• (11) In response to claims of lack of reasoning (see recital (14)), the Commission provided on 15 December 2023, an additional disclosure with the legal basis for its conclusions, which had been unintentionally missing from the first disclosure. All interested parties were given a new opportunity to comment on the disclosure.

• (12) The Lavish Group provided comments on 20 December 2023, but the Union industry did not submit any comments further to this additional disclosure.

• (13) All comments received during the investigation are addressed in the next section.

5. Comments on the disclosures

• (14) In the comments of 18 September 2023, the Union industry claimed that the two companies related to the Lavish Group should receive the residual duty until they could be properly reviewed under Article 11(4) of the basic Regulation, referring to DS505 (United States – Countervailing Measures on Supercalendered Paper from Canada) ⁴. The Union industry also referred to one of the statements made by the Commission in the disclosure, namely ‘EU sales volumes and prices after the investigation period in no way undermined the conclusions on the Lavish Group’s pricing behaviour reached during the investigation’, and submitted that ‘pricing behaviour’ was nowhere defined in the basic Regulation. Instead, the Union industry claimed that the Commission should have conducted a normal value assessment for all six exporting producers that formed part of the Lavish Group, i.e. the four that were investigated in the original investigation plus Silk and Luxgres.

• (15) The Commission disagreed that it did not provide sufficient reasoning. The essential facts on which the Commission based its decision are very clear: 1) the two companies were part of the Lavish Group; 2) they did not export during the investigation period; 3) the Lavish Group’s exports are not covered by the anti-dumping measures. The Commission further clarified in the second disclosure that the two companies had cooperated in the original investigation, one as domestic producer/trader, and the other as a producer which was not yet in operation during the original investigation period. In fact, from the comments of 18 September it is clear that the Union industry had a full understanding of the Commission’s reasons but that it disagreed with the fact that a group not found to be dumping was free to organise its business as it wished. The fact that, in light of the WTO Dispute Settlement Panel conclusions in Beef and Rice ⁵ (‘Beef and Rice’), the Lavish Group was excluded from the measures in accordance with Article 9(3) of the basic Regulation, was not challenged by the Union industry.

• (16) The Union industry’s reference to WTO jurisprudence to support its argument that the two companies of the Lavish Group should be subject to the residual duty until a new exporter review is conducted was found to be irrelevant because the facts of the two cases are fundamentally different. Indeed, the Lavish Group is not subject to the measures, and both Silk and Luxgres have been investigated.

• (17) In relation to its statement concerning the pricing behaviour of the Lavish Group, the Commission clarified that it was by no means legally obliged to perform any price analysis to reach the conclusion set out in the disclosure, which is that Silk and Luxgres, as part of the Lavish Group, had to be explicitly excluded from the measures imposed by the original Regulation (see recital (15)).

• (18) In addition, the argument put forward by the Union industry in the post-hearing submission that the General Disclosure Document of 30 August 2023 never referred to Beef and Rice was found to be misplaced. The Commission provided in the second disclosure the legal basis for the current amendment of the original Regulation, that is, Article 14(1) of the basic Regulation. As found by the Court ⁶, this provision empowers the Commission to set criteria relating to the collection of anti-dumping duties. In the present case, by amending the original Regulation, the Commission clarifies to the customs authorities that anti-dumping duties should not be collected as regards exports of the two companies at issue since they belong to the Lavish Group. Moreover, dumping is calculated for groups of companies and measures applied to all related companies at the same rate. The argument of the Union industry that the two companies which belong to the Lavish Group should be treated as new exporters was considered not only inaccurate – especially considering that those companies were investigated during the original case – but also legally impossible to implement because a review would have to cover all companies of the group and, as noted in recital (15), the Lavish Group was excluded from the anti-dumping measures and cannot be subject to a review. The Union industry criticised the Commission’s position but did not provide any alternative compliant with the legal framework currently in place.

• (19) The claims were therefore rejected.

• (20) In addition, the Union industry claimed that it was not granted timely access to the open file.

• (21) As noted above, the Lavish Group is not covered by anti-dumping measures, and therefore the Commission had no legal basis to extend the measures to the two companies of the group. However, to ensure transparency, the Commission disclosed its intention to amend the original Regulation to the Union industry prior to publication. All the relevant information was made available to the Union industry, respecting confidentiality, and appropriate time was given for them to provide comments both on the disclosures and on the open file. They were provided two formal opportunities to comment on the disclosures and also granted two hearings. All in all, the Union industry had 34 days, i.e. from 8 September 2023 until 12 October 2023, to inspect the file and provide its final comments, which considering the nature of this case is more than sufficient to fully exercise their rights of defence. The fact that the Union industry did not provide any comments after the second disclosure also confirms that they were aware of all facts and understood the Commission’s reasons for taking its decisions fully. The claim was therefore dismissed.

• (22) The Union industry further claimed that the applicants had provided misleading information as to the exact role and economic activities of each related company within the Lavish Group. It also claimed that the Commission’s conclusion to include Silk and Luxgres in the TARIC code already applicable to the four previously investigated exporting producers was erroneous in view of the apparent non-cooperation of Luxgres Ceramica LLP in the original investigation. This claim was reiterated in its post-hearing submission of 6 December 2023, even though the Commission had already clarified during the hearing of 1 December 2023 that both companies had cooperated during the investigation. The Union industry also raised a series of questions/claims concerning the original investigation, such as that they cannot understand which companies were verified during the original investigation and/or part of the group. In this regard, the Lavish Group submitted that Silk and Luxgres cooperated throughout the original investigation. In particular, Silk had filed an exporter questionnaire response on TRON, which was verified by the Commission during the on-the-spot verification. The Luxgres premises had also been verified on the spot by the Commission, as the Lavish Group pointed out. Moreover, the Lavish Group stated that both Silk and Luxgres were related to the Lavish Group.

• (23) The Union industry assessment of the open file is incorrect. The Commission clarified in the second disclosure that both companies cooperated during the original investigation as part of the Lavish Group. The Commission was able to accurately assess the precise activities of each company of the Lavish Group in the framework of the performed on-the-spot verification. In particular, the Commission was able to assess that Silk and Luxgres were related to the other relevant group entities and that they did not export ceramic tiles to the Union during the original investigation period. Most importantly, the Commission noted that the current proceeding was aimed at correctly imposing the rate applicable to the several companies of the Lavish Group and not revising the findings of the original investigation. Had the Union industry had any questions about the group’s cooperation during the original investigation, it should have raised them during the original proceeding. Indeed, had the two related companies not cooperated, the Lavish Group as a whole could have been subjected to Article 18 of the basic Regulation (facts available) then. The claims were therefore dismissed.

• (24) The Union industry further claimed in its post-hearing submission of 6 December 2023 that should the two companies be included as part of the Lavish Group in an amended regulation, the effectiveness of the EU anti-dumping measures would be significantly corroded, and, therefore, this might open the door for acting as a hub for investment by other companies and benefit from a zero duty.

• (25) Apart from being highly speculative and completely detached from the facts currently being assessed, the Commission recalled that the Lavish Group was found not to be dumping and therefore it does not have any legal restraints on its business. The Union industry’s allegations that the Lavish Group is circumventing the anti-dumping measures in place by exporting to the Union products produced by the two new producers is misguided: the Lavish Group is not under measures, and therefore there can be no circumvention of (non-existing) measures. If the Union industry has evidence that the Lavish Group started dumping in the Union market after the original measures and that such practice is causing injury to the Union industry, it must submit a complaint under Article 5 of the basic Regulation to the Commission, which will investigate the Lavish Group (dumping, injury and causal link) afresh.

• (26) Furthermore, the Union industry’s assertion that generally new exporters related to groups covered by trade defence measures would be bound to pay the residual duty is incorrect. New exporters part of groups sampled during the original investigation would be made subject to the duty level applicable to the group unless the conditions for a review under Article 11(3) of the basic Regulation are met. In that case, a new rate would be calculated based on the new exporting structure of the group. On the other hand, new exporters related to non-sampled companies listed in the annex of cooperating (non-sampled) exporting producers would receive the cooperating companies rate after the Commission confirmed they were part of the group that cooperated and did not export to the Union during the original investigation period. In any event, neither of these two scenarios is applicable to the Lavish Group, which, as explained above, is not subject to the anti-dumping measure in question.

• (27) The Union industry’s claims above were therefore dismissed.

• (28) The Union industry also submitted the Commission’s findings, as disclosed to the parties of this proceeding, are inconsistent with those in reply to allegedly identical request by another party sampled in the original investigation. The Union industry noted that the Commission, regarding a request by the Conor Group, did not grant the inclusion in the original Regulation of two additional exporting producers, Coral Plus Ceramic Private Limited and Cyan Granito LLP. This claim was reiterated in its post-hearing submission of 6 December 2023.

• (29) This claim had to be rejected. The situation of the two groups is not comparable as the Conor Group’s exports are covered by the anti-dumping measure imposed by the original Regulation, while the Lavish Group’s exports are not. Moreover, the residual duty rate applicable to exporting producers in India was based and equal to the duty rate established for the Conor Group. In other words, the request was ineffective. Accordingly, the two groups were treated differently.

• (30) The Union industry submitted an alternative request that Silk and Luxgres be reviewed under Article 11(4) of the basic Regulation, stating that they were found not to be part of the Lavish Group during the original investigation. The Commission noted that, first, it is incorrect that the companies were considered not to be part of the Lavish Group. They were not considered to be exporting producers because they did not export to the Union during the investigation period. They were not only considered part of the Lavish Group but also the data (profit margin on traded ceramic tiles) of one of the companies (a trader during the investigation period) was used in the calculation of the dumping margin of the group. Second, according to the fourth subparagraph of Article 11(4), there can be no reviews under Article 11(4) where duties have been imposed under Article 9(6), that is, when sampling took place. Therefore, the solution suggested by the Union industry would be inconsistent with the basic Regulation.

• (31) Finally, the Commission noted that the Union industry misrepresented in its post-hearing submission several of the clarifications it received from the Commission’s services.

• (32) First, the Union industry claimed that the Commission provided during the hearing incorrect information about the methodology normally used for the calculation of dumping. The Union industry further claimed that the services asked them why the complainants did not challenge the dumping margin calculation of the Lavish group at the time it took place. It also claimed that it was unaware of the existence of the two companies and could not have challenged the dumping calculation.

• (33) With regard to the methodology normally used for the dumping calculation, the Commission noted that the Union industry, when challenging the correctness of the services’ statement, used the very exceptional example given by the services during the hearing. Indeed, as explained by the services, the dumping margin of a group is in principle calculated by legal entity and then the final dumping margin is based on the weighted average of the margins of each entity. However, in exceptional cases, such as those where companies of a group only sell domestically and others only export, the comparison will be between the overall group’s normal value to the overall group’s export prices. Ferrosilicon ⁷, mentioned by the Union industry in its post-hearing submission, in fact confirms the correctness of the clarification received during the hearing. Indeed, in that case, the change of methodology was justifiable because the new group structure allow[ed] the identification of the individual producers within the group in respect to sales and production, and therefore aggregation was no longer required. Thus, the Union industry’s representation of the clarification provided during the hearing is false and misleading and, therefore, was dismissed.

• (34) Second, the Commission services did not ask why the Union industry had not challenged the dumping margin. Indeed, in response to claims presented during the hearing, the Commission services stated that the methodology used to calculate the dumping margin during the original investigation should have been challenged during that investigation, and not in the current procedure. In any event, the claim that it could not have challenged the dumping calculation in the original case because it was unaware of the existence of the two companies until the disclosure in this proceeding is false, as several documents mentioning the two Lavish Group companies can be found in the open file of the original case from as early as 14 December 2021, i.e. one day after its initiation.

• (35) In the comments dated 20 December 2023, the Lavish Group reiterated that the inclusion of Silk and Luxgres as part of the Lavish Group was consistent with the basic Regulation and that the Commission should proceed to publish the proposed amendment and include Silk and Luxgres as part of the Lavish Group. The Lavish Group asked the Commission to proceed in an expedited manner to avoid any inconvenience to importers and users in the Union.

• (36) As reasoned in the preceding recitals, the Commission agreed with the view expressed by the Lavish Group.

6. Amendment of Article 1(3) of the original Regulation

• (37) Given the considerations in the recitals above, the Commission considered it appropriate to amend Article 1(3) of the original Regulation by adding Silk Ceramics and Luxgres Ceramica LLP to the Lavish Group entities listed under TARIC additional code C903.

• (38) TARIC additional code C903, previously attributed to Lavish Granito Pvt Ltd., Lavish Ceramics, Lakme Vitrified LLP and Liva Ceramics, should apply to Silk Ceramics and Luxgres Ceramica LLP as well, as of 11 February 2023.

• (39) The Committee established by Article 15(1) of the basic Regulation did not deliver an opinion on the measures provided for in this Regulation,

HAS ADOPTED THIS REGULATION:

Article 1

‘Anti-dumping duties are not applicable to the Indian exporting producer the Lavish Group, consisting of Lavish Granito Pvt Ltd., Lavish Ceramics, Lakme Vitrified LLP and Liva Ceramics (TARIC additional code C903), and are not applicable to the Turkish exporting producer Vitra Karo Sanayi ve Ticaret A.Ş. (TARIC additional code C902).’

is replaced by

‘Anti-dumping duties are not applicable to the Indian exporting producer the Lavish Group, consisting of Lavish Granito Pvt Ltd., Lavish Ceramics, Lakme Vitrified LLP, Liva Ceramics, Silk Ceramics and Luxgres Ceramica LLP (TARIC additional code C903), and are not applicable to the Turkish exporting producer Vitra Karo Sanayi ve Ticaret A.Ş. (TARIC additional code C902).’

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, 7 March 2024.

For the Commission

The President

Ursula VON DER LEYEN

ELI: http://data.europa.eu/eli/reg_impl/2024/804/oj

ISSN 1977-0677 (electronic edition)