Commission Implementing Regulation (EU) 2024/1267 of 6 May 2024 extending the definitive anti-dumping duty imposed by Implementing Regulation (EU) 2021/2012 on imports of stainless steel cold-rolled flat products originating in Indonesia to imports of stainless steel cold-rolled flat products consigned from Taiwan and Vietnam, whether declared as originating in Taiwan and Vietnam or not, and terminating the investigation concerning the possible circumvention of anti-dumping measures imposed by that Regulation by imports of stainless steel cold-rolled flat products consigned from Türkiye, whether declared as originating in Türkiye or not

• (133) The investigation found that the companies Yieh United Steel Corporation, Tang Eng Iron Works Co., Ltd (YUSCO group), Chia Far Industrial Factory Co., Ltd, Yuan Long Stainless Steel Corp, Tung Mung Development Co., Ltd and Walsin Lihwa Corporation, were buying part of their inputs (slabs and/or SSHR) of Indonesian origin, processing them into SSCR and then exporting some of that SSCR to the Union However, the investigation found that this operation did not start or substantially increase since, or just prior to, the initiation of the original anti-dumping investigation, within the meaning of Article 13(2)(a) of the basic AD Regulation. Indeed, as also claimed by Gerber in its disclosure comments, some of the Taiwanese stainless steel producers have been importing and processing inputs from Indonesia since 2017. It follows that, in accordance with Article 13(2) of the basic AD Regulation, the operation in question cannot be considered as circumventing the measures in force.

• (134) In its comments on disclosure, EUROFER argued that the Commission has a broad margin of interpretation regarding the anti-circumvention provision. According to EUROFER, such broad margin must be used by the Commission in particular for the timing requirement in Article 13(2)(a) of the basic AD Regulation. As such, the Commission must not try to look at perfect time coincidence, but must focus on the existence of a justifiable causal link with the circumvented measures including if the behaviour anticipates expected trade defence investigations. EUROFER here referred to the anti-dumping and anti-subsidy investigations initiated in 2019 concerning SSHR from Indonesia ³², a case concerning nickel ore brought against Indonesia at the World Trade Organization in 2019 ³³, the original anti-dumping and anti-subsidy investigations on SSCR from Indonesia in 2020 and 2021, respectively ³⁴, and the anti-circumvention investigation against Türkiye concerning the measures on SSHR from Indonesia in 2022 ³⁵.

• (135) However, Article 13(2)(a) of the basic AD Regulation makes a clear link between the start or substantial increase of the assembly/completion operation and the initiation of the original anti-dumping investigation. The temporal link which should be established, therefore, whether interpreted broadly or not, should be between (1) the assembly/completion operation, i.e. the use of Indonesian inputs for the processing of SSCR and the sales to the Union of such SSCR and (2) the initiation of the original anti-dumping investigation. The assembly/completion operation should have started ‘just prior to’ this initiation, or substantially increased since.

• (136) The Commission considers that the notion of ‘just prior to’, in the case at hand, cannot mean going back to the initiation of other trade defence investigations against Indonesia on other products (SSHR or nickel ore), which took place more than a year before the initiation of the original anti-dumping investigation. As confirmed by EUROFER in its submission, the earliest moment that parties could have known about the possible initiation of the SSCR anti-dumping investigation against Indonesia was at the time when the complaint was lodged by EUROFER in August 2020. The Commission therefore rejected this argument.

• (137) After disclosure, EUROFER also claimed that the Union imports from Taiwan, which did not come directly from the exempted producers, given that they hold a large proportion of the cold rolling capacity, in its vast majority had to come from them indirectly, via service centres for example. Based on this, it should be concluded that there has been a change in the pattern of trade for the individual exempted producers.

• (138) First, EUROFER’s claim was not confirmed by the information gathered and verified during the investigation. It should be noted that the exempted producers did not represent the entirety of the cold rolling capacity in Taiwan during the reporting period, since there were significant cold rolling capacities from companies that did not request exemptions. Furthermore, the companies that requested exemptions did not account for all Taiwanese purchases of Indonesian stainless steel during the reporting period. In fact, it was established that over 100 000 tonnes of SSHR imported from Indonesia into Taiwan during the reporting period were not purchased by the companies that requested exemptions.

• (139) Second, even if the exempted Taiwanese producers would sell potentially large quantities of SSCR to the Union via service centres in Taiwan, this does not change the fact that, based on Article 13(2)(a) of the basic AD Regulation, the relevant producers were not found to be engaged in the circumvention practice found in Taiwan. To recall, as noted in recital 133, the relevant entities either did not use inputs from Indonesia or, if they did, they did not substantially increase that usage ‘since, or just prior to, the initiation of the [original] anti-dumping investigation’ ³⁶. It follows that the assembly/completion operation the relevant entities were found to be engaged in could not be considered to circumvent the measures in force within the meaning of Article 13(2) of the basic AD Regulation. In other words, even if SSCR produced by the exempted entities was sold to service centres, further processed and then exported to the Union, that SSCR was not an outcome of the circumvention practice found for Taiwan.

• (140) Based on this, EUROFER’s claim that the change in trade patterns at country level is due to indirect sales of the exempted producers is rejected.

• (141) As the first of the criteria laid down in Article 13(2) of the basic AD Regulation was not met, the Commission concluded that the operations of these companies shall not be considered as circumventing the existing measures. The requests for exemption of Yieh United Steel Corporation – Tang Eng Iron Works Co., Ltd (YUSCO group), Chia Far Industrial Factory Co., Ltd, Yuan Long Stainless Steel Corp, Tung Mung Development Co., Ltd and Walsin Lihwa Corporation should therefore be accepted.

5.2.   Vietnam

• (142) Three exporting producers from Vietnam requested an exemption of the extension of the measures.

5.2.1.   Lam Khang Joint Stock Company

5.2.1.1.   Start or substantial increase of operations

• (143) Lam Khang began production of the product under investigation in August 2021, when it started to lease the factory of Hoa Binh International Stainless Steel Joint Stock Company. The Commission therefore concluded that the operation of Lam Khang started after the initiation of the anti-dumping investigation of 30 September 2020.

5.2.1.2.   Value of parts and added value

• (144) For Lam Khang, in the reporting period more than 60 % of all parts used by the company were from Indonesia. The value added to the parts was below 10 % of the manufacturing cost.

5.2.1.3.   Undermining of the remedial effects of the duty

• (145) In accordance with Article 13(2) of the basic AD Regulation, the Commission examined whether the imports of the product under investigation into the Union, both in terms of quantities and prices, undermined the remedial effects of the measures currently in force.

• (146) The quantities of SSCR that were exported to the Union by Lam Khang increased significantly in absolute volumes during the investigation period and represented [3-7] % of the imports into the Union originating in Vietnam and [0-0,2] % of the Union consumption during the reporting period.

• (147) Regarding prices, the Commission compared the average non-injurious price, as established in the original anti-dumping investigation adjusted for the price increase of SSCR based on the European Union producer price index ³⁷, with the weighted average export CIF prices determined on the basis of the information provided by Lam Khang, duly adjusted to include post importation costs. This price comparison showed that Lam Khang did not undersell the Union prices in the reporting period.

• (148) The Commission therefore concluded that the existing measures were undermined in terms of quantities by the imports from Vietnam into the Union by Lam Khang.

5.2.1.4.   Evidence of dumping

• (149) In accordance with Article 13(2)(c) of the basic AD Regulation, the Commission examined whether there was evidence of dumping in relation to the normal values established during the original anti-dumping investigation, adjusted for the price increase of SSCR coils in Indonesia (as explained in recital 123).

• (150) The comparison of normal values and export prices showed no evidence of dumping by Lam Khang during the reporting period.

5.2.1.5.   Conclusion on the exemption request

• (151) In view of the above, the Commission concluded that the request for exemption of Lam Khang should be accepted.

5.2.2.   Posco VST Co., Ltd

• (152) The investigation established that less than 60 % of all parts used by Posco VST during the reporting period was from Indonesia. In addition, in accordance with Article 13(2)(c) of the basic AD Regulation, the Commission examined whether there was evidence of dumping in relation to the normal values established during the original anti-dumping investigation, adjusted for the price increase of SSCR coils in Indonesia (as explained in recital 123). The comparison of normal values and export prices showed no evidence of dumping by Posco VST during the reporting period.

• (153) Following disclosure, EUROFER concluded from recital 152 that the Commission assessed the criteria of article 13(2)(b) of the basic AD regulation, and specifically the 60 % rule laid therein, at the level of the producer rather than the product. EUROFER considered that the adoption of such approach was incompatible with the stated purpose and objective of the anti-circumvention provision. Although the Commission has used this approach in previous cases, EUROFER claimed that such approach is not relevant nor appropriate in the case at hand, that it leads to absurd and nonsensical results and that it would go against the very purpose of the anti-circumvention provision by preventing capturing the largest circumventing volumes. According to EUROFER, the Commission should base its interpretation of the assembly/completion operations test on adherence to the requirements of the basic AD Regulation and case law, and not its prior practice.

• (154) The Commission recalled, as is apparent from the case-law of the Court of Justice, that the legislature intended to give the EU institutions a broad margin of discretion in relation to the definition of ‘circumvention’ and that the objective of investigations conducted in accordance with Article 13 of the basic AD Regulation is to ensure the effectiveness of anti-dumping duties and to prevent their circumvention ³⁸. The Commission also noted that it is apparent that the legislature intended that the use of some parts from the country under measures, in assembly/completion operations in another country or the Union, does not constitute a circumvention. This is why, when the practice, process or work referred to in Article 13(1) of the basic AD Regulation falls under the concept of assembly/completion operations, Article 13(2)(b) foresees an objective threshold of 60 % to be applied to that operation.

• (155) The main issue with the approach proposed by EUROFER is that it does not consider the practice, process or work referred to in Article 13(1), in this case an assembly/completion operation, in its entirety. Instead, it proposes to focus the threshold assessment only on the part of the assembly/completion operation where exclusively inputs from Indonesia were used, ignoring the rest. In the case at hand, such approach, by its very nature, essentially renders the threshold put in place by the legislature meaningless. This is why, considering the particular facts of this case, such approach was rejected.

• (156) EUROFER also argued that, when the Commission concluded that the practice, process or work does not meet the threshold of Article 13(2) of the basic AD Regulation, the Commission should have assessed whether the practice falls under the general circumvention definition of Article 13(1) of the basic AD Regulation. However, this is exactly what the Commission did in section 2.5.3. In that section, the Commission concluded that the further processing of SSHR into SSCR falls under the concept of an assembly/completion operation in the sense of Article 13(2) of the basic AD Regulation. This meant that the Commission considered which type of practice, process or work was taking place in Vietnam, as required by Article 13(1) of the basic AD Regulation, and concluded that this should be considered an assembly/completion operation. The fact that for a number of companies, the assembly/completion operation did not fulfil the criteria for circumvention, does not mean that the Commission should then no longer consider such operation as assembly or completion for those companies.

• (157) EUROFER, in its submission after disclosure, stated ‘To consider that there is no circumvention when the assembly test is not met, the Commission must also demonstrate that the “cold rolling” found to occur in the exempted companies is not a practice process or work’. This is incorrect. In establishing the existence of circumvention the Commission must first demonstrate, according to Article 13(1) of the basic AD Regulation, that the observed change in the pattern of trade ‘stems from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty’. On a countrywide level, the Commission established the existence of circumvention on this basis for Vietnam.

• (158) However, the exemptions granted on company level, such as for Posco VST, were based on the fact that for that particular company the practice, process or work – which was considered an assembly/completion operation – failed to meet the specific criteria laid down in Article 13(2). This only means that that company was found not to be engaged in circumvention practice, but it does not invalidate the finding of circumvention for the rest of the country, including the companies that were not exempted from the extension of the measures. It certainly does not invalidate the finding that the practice, process or work which is the cause of the circumvention of the measures in Vietnam is considered an assembly/completion operation. The Commission therefore dismissed this claim.

• (159) An additional claim by EUROFER in its submission after disclosure was that the Commission is not allowed to grant any exemptions ‘if circumvention of the product is found to exist’. This claim seems to imply that EUROFER believes that the Commission has illegally granted exemptions. This is incorrect. The Commission has applied the rules as laid down in Article 13(1) and 13(2)(b), as set out in the previous sections. It has found that certain producers of the product concerned qualified for an exemption based on those rules.

• (160) As the second and third of the criteria laid down in Article 13(2) of the basic AD Regulation were not met, the Commission concluded that the operation of this company shall not be considered to circumvent the existing measures. Posco VST’s request for exemption should therefore be accepted.

5.2.3.   Yongjin Metal Technology (Vietnam) Company Limited

5.2.3.1.   Start or substantial increase of operations

• (161) Yongjin started its production of the product concerned in April 2022. The Commission therefore concluded that the operation of Yongjin started after the initiation of the anti-dumping investigation of 30 September 2020.

• (162) After disclosure, Yongjin and Gerber claimed that Yongjin’s cold-rolling mill had been planned since 2017 and that its construction was therefore not linked to the initiation of the original investigation. However, even if the plans for the mill pre-date the original anti-dumping investigation, Yongjin’s actual operation (i.e. the purchasing of input materials from Indonesia and the sales to the Union of SSCR which incorporate such Indonesian input materials) started and substantially increased only after the initiation of the original investigation, namely in 2022. The Commission therefore dismissed this claim.

• (163) In its submission following initiation of the current investigation, Yongjin argued that there are economic justifications for, on the one hand, establishing an SSCR production facility in Vietnam (such as competitive labour costs, geographical location, low energy costs, Vietnam’s environment, economic and trade policy including tax incentives, …), and, on the other hand, sourcing input material (SSHR) from Indonesia in view of the availability in Indonesia of nickel – an input for stainless steel – and the relations built with Indonesian companies. After disclosure, Yongjin repeated this argument highlighting the low operating cost in Vietnam and the growing domestic demand for SSCR.

• (164) However, the Commission noted that these factors had previously existed and that there were no specific developments in recent years that would explain the development of the production of SSCR, other than the imposition of the duty. The Commission therefore rejected this claim.

5.2.3.2.   Value of parts and added value

• (165) For Yongjin, in the reporting period almost 100 % of all parts used by the company were from Indonesia. The value added to the parts was below 10 % of the manufacturing cost.

5.2.3.3.   Undermining of the remedial effects of the duty

• (166) In accordance with Article 13(2) of the basic AD Regulation, the Commission examined whether the imports of the product under investigation into the Union, both in terms of quantities and prices, undermined the remedial effects of the measures currently in force.

• (167) The quantities of SSCR that were exported to the Union by Yongjin increased significantly in absolute volumes during the investigation period and represented [26-30] % of the imports into the Union originating in Vietnam and [0,5-1] % of the Union consumption during the reporting period.

• (168) Regarding prices, the Commission compared the average non-injurious price, as established in the original anti-dumping investigation adjusted for the price increase of SSCR based on the European Union producer price index ³⁹, with the weighted average export CIF prices determined on the basis of the information provided by Yongjin, duly adjusted to include post importation costs. This price comparison showed that Yongjin undersold by [23-43] % the Union prices in the reporting period.

• (169) The Commission therefore concluded that the existing measures were undermined in terms of quantities and prices by the imports from Vietnam into the Union by Yongjin.

5.2.3.4.   Evidence of dumping

• (170) In accordance with Article 13(2)(c) of the basic AD Regulation, the Commission examined whether there was evidence of dumping in relation to the normal values established during the original anti-dumping investigation, adjusted for the price increase of SSCR coils in Indonesia (as explained in recital 123).

• (171) Following disclosure, Yongjin claimed that the adjustment of the normal value as explained in recital 123 does not ensure a fair comparison as it does not consider the difference in the exchange rates which affect price comparability. Yongjin argued that the exchange rate difference between the original investigation period and the reporting period for the specific currencies related to each export destination should have been taken into account. However, the data was extracted by the Commission from GTA. Indonesia reports its data to GTA in US dollar, regardless of the export destination. This meant there was no influence of the export destinations’ exchange rate fluctuations on the Indonesian export prices used for adjusting the normal value. This is also corroborated by the fact that in the original investigation, the cooperating Indonesian companies used US dollar as the invoice currency for their exports. The Commission therefore dismissed this claim.

• (172) The comparison of normal values and export prices showed that there was evidence of dumping by Yongjin during the reporting period.

5.2.3.5.   Conclusion on the exemption request

• (173) In view of the above, the Commission concluded that the request for exemption of Yongjin should be rejected.

• (174) The application of exemptions when the request for release for free circulation is presented to the relevant customs authority should be conditional upon presentation to the customs authorities of the Member States of a valid commercial invoice and, to minimise the risks of circumvention, especially for sales of SSCR via traders or service centres, a valid commercial invoice and a valid mill certificate which shall conform to the requirements set out in the Articles of this Regulation. If no such invoice and mill certificate are presented at the time of the request for release for free circulation is presented to the relevant customs authority, imports shall be made subject to the extended anti-dumping duty rate for all other companies.

• (175) In light of the seriousness of the circumvention practices in this case, the Commission considered that an additional measure was necessary to monitor the proportion of Indonesian-based SSCR imported into the Union. This monitoring system would work as follows: a declaration will be added to the mill certificate mentioned in recital 174 to state whether the location where the stainless steel to produce the SSCR was originally melted and poured, was in Indonesia or not.

• (176) While presentation of this invoice and mill certificate is necessary for the customs authorities of the Member States to apply the exemptions, it is not the only element to be taken into account by the customs authorities. Indeed, even if presented with an invoice meeting all the requirements set out in Article 1 of this regulation, the customs authorities of Member States must carry out their usual checks and may, like in all other cases, require additional documents (shipping documents, etc.) for the purpose of verifying the accuracy of the particulars contained in the declaration and ensure that the subsequent application of the exemption is justified, in compliance with customs law.

• (177) After disclosure, Posco VST and Posco Assan requested that the Commission include a template with the text of the declaration referred to in recital 175 in the definitive Regulation. Such template was included in the Annexes to this Regulation.

• (178) Posco VST and Posco Assan also requested the Commission to confirm that it did not intend to prohibit imports of SSCR from the exempted companies even when made from Indonesian SSHR or slabs. Indeed, the exemption granted to certain companies in this investigation applies to all SSCR imported from those exempted companies, regardless of the origin of their inputs. If, however, the Commission were to find that following the entry into force of these measures, a substantial increase of imports into the Union of SSCR made from Indonesian inputs were to occur, the Commission will re-assess the situation in light of such developments. If warranted, such assessment may give rise to a review under Article 11 of the basic AD Regulation.

7. DISCLOSURE

• (179) On 5 March 2024, the Commission disclosed to all interested parties the essential facts and considerations leading to the above conclusions and invited them to comment.

• (180) 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

Country	Company	TARIC additional code
Taiwan	Chia Far Industrial Factory Co., Ltd Tang Eng Iron Works Co., Ltd Tung Mung Development Co., Ltd Walsin Lihwa Corporation Yieh United Steel Corporation Yuan Long Stainless Steel Corp.	89AH
Vietnam	Posco VST Co., Ltd Lam Khang Joint Stock Company	89AJ 89AI

• (a) If the importer buys directly from the Taiwanese or Vietnamese exporting producer, a commercial invoice bearing a declaration of the exporting producer and a mill certificate from that exporting producer as specified in Annex 1 (‘manufacturer declaration for direct export sale’). The mill certificate must be from one of the companies listed in paragraph 1;

• (b) If the importer buys from a trader or other intermediate legal person, whether located in Taiwan and Vietnam or not, a commercial invoice from the manufacturer to the trader or other intermediate legal person bearing a declaration of the manufacturer and a mill certificate from that manufacturer as specified in Annex 2 (‘manufacturer declaration for indirect export sale’) and a commercial invoice from the trader or other intermediate legal person to the importer. The mill certificate must be from one of the companies listed in paragraph 1.

If neither the mill certificate nor the invoice are presented, the duty applicable to ‘all other companies’ shall apply.

Article 2

Customs authorities are hereby directed to cease the registration of imports established in accordance with Article 2 of Implementing Regulation (EU) 2023/1632.

Article 3

Article 4

Article 5

The exemption request submitted by Yongjin Metal Technology (Vietnam) Company Limited is rejected.

Article 6

The investigation concerning possible circumvention of anti-dumping measures imposed by Implementing Regulation (EU) 2021/2012, by imports of stainless steel cold-rolled flat products consigned from Türkiye, whether declared as originating in Türkiye or not, is hereby terminated.

Article 7

European Commission
Directorate-General for Trade
Directorate G Office:
CHAR 04/39
1049 Bruxelles/Brussel
BELGIQUE/BELGIË

Article 8

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 May 2024.

For the Commission

The President

Ursula VON DER LEYEN

ANNEX 1

Manufacturer declaration for direct export sale

1.

A declaration signed by an official of the manufacturer issuing the commercial invoice, in the following format, must appear on the valid commercial invoice referred to in Article 1(4)(a):

• (a) the name and function of the official of the manufacturer;

• (b) the following declaration: ‘I, the undersigned, certify that the (volume in kg) of flat-rolled products of stainless steel, not further worked than cold-rolled (cold-reduced), sold for export to the European Union covered by this invoice was manufactured by (company name and address) (TARIC additional code) in (Taiwan or Vietnam). I declare that the information provided in this invoice is complete and correct.’;

• (c) date and signature.

2.

The commercial invoice must be accompanied by a mill certificate including a declaration signed by an official of the entity issuing the mill certificate, in the following format, appearing on the valid mill certificate referred to in Article 1(4)(a):

• (a) the name and function of the official of the entity issuing the mill certificate;

• (b) the following declaration:

‘ I, the undersigned, certify that:

• (i) the (volume in kg) of flat-rolled products of stainless steel, not further worked than cold-rolled (cold-reduced), sold for export to the European Union covered by the mill certificate, was manufactured by (company name and address) (TARIC additional code) in (Taiwan or Vietnam). I declare that the information provided in this mill certificate is complete and correct.

• (ii) The stainless steel inputs used for the production of the (volume in kg) of flat-rolled products of stainless steel, not further worked than cold-rolled (cold-reduced), sold for export to the European Union covered by the mill certificate was originally melted and poured in Indonesia: YES/NO (please indicate the correct reply).’;

• (c) date and signature.

ANNEX 2

Manufacturer declaration for indirect export sale

1.

A declaration of the Taiwanese or Vietnamese manufacturer, signed by an official of the manufacturer issuing the invoice for this transaction to the trader or other intermediate legal person, in the following format, must appear on the commercial invoice of the manufacturer to the other intermediate legal person or trader referred to in Article 1(4)(b):

• (a) the name and function of the official of the manufacturer;

• (b) the following declaration: ‘I, the undersigned, certify that the (volume in kg) of flat-rolled products of stainless steel, not further worked than cold-rolled (cold-reduced) sold to the trader/other intermediate legal person (name of the trader/other intermediate legal person) (country of the trader/other intermediate legal person), covered by this invoice, was manufactured by our company (company name and address) (TARIC additional code) in (Taiwan or Vietnam). I declare that the information provided in this invoice is complete and correct.’;

• (c) date and signature.

2.

The commercial invoice must be accompanied by a mill certificate including a declaration signed by an official of the entity issuing the mill certificate, in the following format, appearing on the valid mill certificate referred to in Article 1(4)(b):

• (a) the name and function of the official of the entity issuing the mill certificate;

• (b) the following declaration:

‘ I, the undersigned, certify that:

• (i) the (volume in kg) of flat-rolled products of stainless steel, not further worked than cold-rolled (cold-reduced), sold for export to the European Union covered by the mill certificate, was manufactured by (company name and address) (TARIC additional code) in (Taiwan or Vietnam). I declare that the information provided in this mill certificate is complete and correct.

• (ii) The stainless steel inputs used for the production of the (volume in kg) of flat-rolled products of stainless steel, not further worked than cold-rolled (cold-reduced), sold for export to the European Union covered by the mill certificate was originally melted and poured in Indonesia: YES/NO (please indicate the correct reply).’;

• (c) date and signature.

ELI: http://data.europa.eu/eli/reg_impl/2024/1267/oj

ISSN 1977-0677 (electronic edition)