Commission Implementing Regulation (EU) 2022/1395 of 11 August 2022 imposing a definitive anti-dumping duty on imports of certain corrosion resistant steels originating in Russia and Turkey

COMMISSION IMPLEMENTING REGULATION (EU) 2022/1395 of 11 August 2022 imposing a definitive anti-dumping duty on imports of certain corrosion resistant steels originating in Russia and Turkey

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) On 24 June 2021, the European Commission (‘the Commission’) initiated an anti-dumping investigation with regard to imports of certain corrosion resistant steels originating in Russia and Turkey (‘the countries concerned’) on the basis of Article 5 of 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 12 May 2021 by the European Steel Association (‘Eurofer’ or ‘the complainant’). The complaint was made on behalf of the Union industry of certain corrosion resistant steels 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.

(3) In the Notice of Initiation, the Commission invited interested parties to contact it in order to participate in the investigation. In addition, the Commission specifically informed the complainant, other known Union producers, the known exporting producers and the authorities of Russia and Turkey, known importers and users, as well as associations known to be concerned about the initiation of the investigation and invited them to participate.

(4) Interested parties had the opportunity to comment on the initiation of the investigation and to request a hearing with the Commission and/or the Hearing Officer in trade proceedings. The Commission held a hearing with a Turkish exporting producer on 17 September 2021.

(5) In the Notice of Initiation, the Commission stated that it might sample the interested parties in accordance with Article 17 of the basic Regulation.

(6) In its Notice of Initiation, the Commission stated that it had provisionally selected a sample of Union producers. The Commission selected the sample on the basis of production and Union sales volumes reported by the Union producers in the context of the pre-initiation standing assessment analysis, taking also into account their geographical location. This provisional sample consisted of three Union producers, located in three different Member States. The sample accounted for more than 23 % of production and sales in the Union of like product. The Commission invited interested parties to comment on the provisional sample (3). No parties made any comments within the given deadline.

(7) During the verification visit at the premises of one of the sampled Union producers, it was found that the company had wrongly included in its reply to the standing questionnaire as well as in its reply to the anti-dumping questionnaire a significant share of data concerning products falling outside the scope of the investigation. To ensure that such situation did not affect the representativeness of the sample, the Commission decided to maintain the company concerned in the sample and to include an additional company to the sample. The final sample thus established consisted of four Union producers, located in three different Member States, which accounted for ca. 25 % of the estimated total volume of production and sales of the like product in the Union. The Commission invited interested parties to comment on the final sample (4). No parties made any comments within the given deadline.

(8) To decide whether sampling is necessary and, if so, to select a sample, the Commission asked unrelated importers to provide the information specified in the Notice of Initiation.

(9) None of the companies that submitted an Annex to the Notice of Initiation within the deadline reported imports of the product concerned. The Commission decided to abandon sampling. No comments were received to this decision.

(10) To decide whether sampling was necessary and, if so, to select a sample, the Commission asked all exporting producers in Russia to provide the information specified in the Notice of Initiation. In addition, the Commission asked the Permanent Mission of the Russian Federation to the European Union to identify and/or contact other exporting producers, if any, that could be interested in participating in the investigation.

(11) Three exporting producers/groups of exporting producers in Russia, accounting for around 98 % of the total Russian export volume of the product concerned to the Union, provided the requested information and agreed to be included in the sample. In accordance with Article 17(1) of the basic Regulation, the Commission selected a sample of two companies on the basis of the largest representative volume of exports to the Union which could reasonably be investigated within the time available. In accordance with Article 17(2) of the basic Regulation, all known exporting producers concerned and the Russian authorities were consulted on the selection of the sample.

(12) The Commission received comments on the sample from PJSC Novolipetsk Steel. The company pointed out that there were sound legal reasons to conduct the investigation on three, rather than two, exporting producers, especially if one of the originally sampled companies would withdraw its cooperation. Such withdrawal would complicate the determination of the dumping margin for non-sampled cooperating exporting producers.

(13) In addition, the company emphasized that the Commission sampled the exporting producer PJSC Magnitogorsk Iron and Steel Works in Russia and its subsidiary MMK Metalurji Sanayi Ticaret ve Liman İşletmeciliği A.Ş. in Turkey. The company asserted that the two related exporting producers shared part of their sales channels. That would reduce the workload of the Commission, thus allowing for investigation of NLMK.

(14) After analysing the comments of NLMK, the Commission found in particular the claims described in recital (12) justified and decided to abandon sampling with regard to the exporting producers in Russia. The Commission informed the company in question as well as Russian authorities of this decision.

(15) To decide whether sampling was necessary and, if so, to select a sample, the Commission asked all exporting producers in Turkey to provide the information specified in the Notice of Initiation. In addition, the Commission asked the Mission of Turkey to the European Union to identify and/or contact other exporting producers, if any, that could be interested in participating in the investigation.

(16) Eight exporting producers/groups of exporting producers in Turkey, accounting for around 100 % of the total Turkish export volume of the product concerned to the Union, provided the requested information and agreed to be included in the sample. In accordance with Article 17(1) of the basic Regulation, the Commission selected a sample of three companies on the basis of the largest representative volume of exports to the Union which could reasonably be investigated within the time available. In accordance with Article 17(2) of the basic Regulation, all known exporting producers concerned and the authorities of the country concerned were consulted on the selection of the sample. No comments were received to the sampling proposal. The final sample thus established accounted for 62,6 % of the total Turkish export volume of the product concerned to the Union.

(17) One exporting producer in Turkey requested individual examination under Article 17(3) of the basic Regulation. The Commission decided that the examination of this request would have been unduly burdensome and would have prevented the completion of the investigation in good time. This is due to the complex corporate structure of the company in question. Therefore, the individual examination request was rejected.

(18) The Commission sent a questionnaire to the complainant and requested the four sampled Union producers (5), the three exporting producers in Russia and the three sampled exporting producers in Turkey to fill in the relevant questionnaires made available online (6) on the day of initiation.

(19) Questionnaire replies were received from the four sampled Union producers, the complainant, the three exporting producers from Russia, the three sampled exporting producers from Turkey and the exporting producer from Turkey that requested individual examination.

(22) The investigation of dumping and injury covered the period from 1 January 2020 to 31 December 2020 (‘the investigation period’ or ‘IP’). The examination of trends relevant for the assessment of injury covered the period from 1 January 2017 to the end of the investigation period (‘the period considered’).

(23) The Turkish association CIB and several exporting producers found the chosen investigation period and period considered biased. They deemed them inappropriate, as 2017 was a relatively good year for the steel business while 2020 was negatively affected by the COVID-19 pandemic. They alleged that the comparison of both endpoints would not be representative of the performance and situation of the Union industry. Some requested quarterly analysis for a better comparison.

(24) The Commission dismissed the claims as both the period considered and the investigation period were appropriate bearing in mind the date of the lodging of the complaint and the applicable rules. In any event, the Commission’s analysis is not made on a comparison of the base year with the investigation period but on trends throughout the period concerned and includes factors possibly affecting the corrosion resistant steel (‘CRS’) market in the Union and factored them in in the investigation, as shown, inter alia, in Section 5 below.

(25) After final disclosure CIB and several exporting producers disagreed with the Commission’s position. They argued that the Commission should have considered developments subsequent to the investigation period, as during the first 8 months of 2021 prices of hot dipped galvanized products, which include CRS, as well as the average margin of hot dipped galvanized steel products over hot rolled coils would have increased strongly in the Union. At the same time, in 2021 the production levels of the Union industry would have been restored to the 2019 levels. With reference to the judgement of the General Court in Rusal Armenal ZAO v Council (7), they therefore claimed that these developments constitute new facts which make the proposed anti-dumping duty manifestly inappropriate and these facts have to be considered by the Commission including by expanding the period of investigation to capture 2021 and the first quarter of 2022.

(26) The Commission analysed the claim. It found that the rise in sales prices in 2021 as such is not indicative for an improvement, of whatever magnitude, of the Union industry’s profitability. Indeed, the Commission noted that a rise in prices can only have a positive effect on the situation of the industry as compared to the previous year if it is significantly higher than the rise in costs over the same period. For this, no evidence was submitted. As concerns production, the Commission acknowledged that in 2021 certain producers experienced difficulties to satisfy the strong market demand of CRS at certain moments in time, in particular in the beginning of that year. However, it underlined that this was a temporary phenomenon and did not have any information at its disposal indicating that this would relate to the industry as a whole. The Commission therefore found that none of the claims invoked by the parties concerned demonstrated that the new developments after the investigation period would make the proposed anti-dumping duty manifestly inappropriate. The Commission thus rejected the claim.

(27) Pursuant to Article 7(1) of the basic Regulation, the deadline for the imposition of provisional measures was 23 February 2022. On 26 January 2022, in accordance with Article 19a(2) of the basic Regulation, the Commission informed the interested parties of its intention not to impose provisional measures and gave the interested parties the opportunity to submit additional information and/or to be heard. No party submitted comments or asked to be heard.

(28) After final disclosure, Government of Russia (‘GOR’) submitted that the fact that no provisional measures had been imposed meant that the Union industry was stable and did not need intervention from the Commission to prevent injury. The Commission rejected this claim. According to Article 7(1) of the basic Regulation, provisional measures may be imposed. There is no obligation upon the Commission to impose provisional measures if the Union industry is suffering injury. Therefore, no conclusions can be drawn as regards the state of the Union industry if the Commission decides not to impose provisional measures but to continue the investigation instead, as it had done in this case.

(29) Since no provisional anti-dumping measures were imposed, no registration of imports was performed.

(30) The Commission continued to seek and verify all the information it deemed necessary for its final findings.

(31) Following the analysis of the collected and verified data, the Commission informed MMK and PAOS of its intention to apply facts available to certain parts of their questionnaire replies in accordance with Article 18 of the basic Regulation. The Commission gave the companies the opportunity to comment. The reasons for the application of facts available and the comments submitted by the companies are addressed in Section 3.1.2 of this Regulation.

(32) When reaching its definitive findings, the Commission considered the comments submitted by interested parties.

(33) 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 CRS originating in Russia and Turkey (‘final disclosure’). All parties were granted a period within which they could make comments on the final disclosure.

(34) Following the final disclosure, comments were received from the complainant, the GOR, all three Russian cooperating exporting producers, the Government of Turkey (‘GOT’), all three Turkish cooperating exporting producers and the Turkish Steel Exporters Association. Hearings were requested by and held with MMK, NLMK, the GOT, Tezcan and the Turkish Steel Exporters Association. The comments submitted by the parties and/or presented during the hearings are addressed in the respective parts of this Regulation.

(35) Furthermore, following the individual additional definitive disclosures, Tezcan and MMK requested the intervention of the Hearing Officer.

(36) Following final disclosure, CIB argued that the anti-dumping measures should be suspended pursuant to Article 14(4) of the basic Regulation due to market changes occurring after the end of the investigation period. In particular, CIB referred to sharp CRS price increases since the end of the investigation period, strongly improved profitability of certain Union producers since then, and the sanctions against Russia which would guarantee that injury would be unlikely to resume as a result of suspension.

(37) Article 14(4) states that measures may only be suspended where injury to the Union industry would be unlikely to resume as a result of the suspension. The Commission has no information on file supporting that the Union industry improved after the end of the investigation period so that injury would be unlikely to resume. The fact that CRS prices might have increased after the investigation period alone cannot be the basis for a conclusion that the Union industry is no longer injured even if CIB claim that the profitability of ‘certain Union producers’ would have increased was accepted. Indeed, the opening of the investigation may itself have had such effects and those effects would thus quickly dissipate if definitive measures are suspended. The Commission can only suspend measures after a careful analysis of the situation of the Union industry after the investigation period, and of the alleged changes in market conditions, which requires the collection of detailed information. This assessment is normally done outside the investigation proceedings, in particular when such claims are submitted at a late stage and without the necessary supporting evidence, as was the case in this instance.

(38) Following final disclosure, GOR argued that the application of Article 18 of the basic Regulation with regard to two Russian exporting producers was not justified as the companies showed cooperative behaviour, provided extensive responses to the questionnaire and the request for additional information including intermediate calculations and made the requested corrections. In addition, GOR pointed out that the letters on the application of Article 18 were sent more than a month after the verifications and remote cross-checks were concluded.

(39) The Commission noted that the reasons for the application of Article 18 of the basic Regulation were duly communicated and explained to the respective companies after all information collected from the questionnaire and deficiency replies and during the verifications and remote cross-checks was properly analysed. With regard to PAOS, the issue is addressed in recitals (93) to (109) in detail. With regard to MMK, the reasons are explained in recitals (75) to (90) in general and, for confidentiality reasons, in the company specific disclosure in detail. Therefore, the Commission rejected GOR’s claims concerning the application of Article 18 of the basic Regulation.

(41) CRS is produced by coating flat rolled steel coils, sheets and strips by immersion in a bath of molten metal or metal alloy of zinc. The coating metal combines with the steel substrate in a metallurgical reaction to form a multiple layered structure of alloys, resulting in a coating which is metallurgically bonded to the steel. The surface of the product is further treated with chemical passivation to protect the surface against humidity and to reduce the risk of formation of corrosion products during storage and transportation.

(42) CRS is mainly used in the construction sector for various cladding building materials but also for manufacturing domestic appliances, deep-drawing and stamping processes and small welded pipes.

(44) The Commission decided that those products are therefore like products within the meaning of Article 1(4) of the basic Regulation.

(45) An importer requested CRS with a thickness below 0,40 mm (‘thin sizes’) to be excluded from the scope of the investigation. The party argued that thin sizes, more labour-intensive and expensive, form a distinct segment which is produced in insufficient quantities by the Union industry. The party added that the exclusion of thin sizes would not diminish the corrective effect of the measures sought by the complainants, whereas the imposition of anti-dumping measures on thin sizes would hurt users (as they will have no access to such products at competitive prices).

(46) The Commission found the grounds for the request unfounded because, overall, the Union industry has production capacity for all required sizes of CRS (8). The Commission also found that all types of CRS, no matter their size or point of importation, are produced in hot dipped galvanising lines and share the same features in terms of their basic physical and technical characteristics, their end-uses and interchangeability. The Commission therefore rejected the exclusion request.

(47) Tezcan, a Turkish producer of, inter alia, CRS coated AluZinc (‘AluZinc CRS’) requested the exclusion of AluZinc CRS from the scope of the measures. According to the party, AluZinc CRS products are a distinct segment of CRS, which does not compete with products produced by the Union industry. The party stated that AluZinc CRS products were not produced in the Union ‘in commercially viable quantities’ and that the Union producer manufacturing such product was unable to provide the amount of AluZinc CRS necessary to satisfy demand in the Union.

(48) The Commission found the grounds for the request unfounded because, even if temporarily there was limited Union production of AluZinc CRS, overall, the Union industry has production capacity for AluZinc CRS. The Commission also found that all types of CRS, no matter their coating, are produced in hot dipped galvanising lines. In addition, AluZinc CRS and CRS with other coatings share the same features in terms of their basic physical and technical characteristics, their end-uses and interchangeability (9). The Commission therefore rejected the exclusion request.

(49) After final disclosure, Tezcan reiterated its request. It stated that that there was no Union production as a result of financial mismanagement on the part of the sole Union producer of AluZinc CRS. Tezcan insisted that AluZinc and Zinc CRS were entirely different products – physically, chemically and technically – namely on the grounds of AluZinc CRS’s production process and some AluZinc properties.

(50) The Commission found Tezcan’s grounds for the request unfounded because the producer mentioned by Tezcan had a viable business plan and remained a viable part of the Union industry. Also, the Commission had found that all types of CRS, no matter their coating, are produced in hot dipped galvanising lines, which was acknowledged by Tezcan when noting that the sole Union producer of AluZinc CRS has one hot dipped galvanising line but two pots, which they can switch, depending on whether the producer wanted to produce AluZinc CRS or other products. In addition, the claim that not all CRS coatings have exactly the same properties does not undermine the fact that AluZinc CRS and CRS with other coatings share the same features in terms of their basic physical and technical characteristics, their end-uses and interchangeability (10). The Commission therefore rejected the exclusion request.

(51) The Commission first examined whether the total volume of domestic sales for each cooperating exporting producer was representative, in accordance with Article 2(2) of the basic Regulation. The domestic sales are representative if the total domestic sales volume of the like product to independent customers on the domestic market per exporting producer represented at least 5 % of its total export sales volume of the product concerned to the Union during the investigation period. On this basis, the total sales by each cooperating exporting producer of the like product on the domestic market were representative.

(52) The Commission subsequently identified the product types sold domestically that were identical or comparable with the product types sold for export to the Union.

(53) The Commission then examined whether the domestic sales by each cooperating exporting producer on its domestic market for each product type that is identical or comparable with a product type sold for export to the Union were representative, in accordance with Article 2(2) of the basic Regulation. The domestic sales of a product type are representative if the total volume of domestic sales of that product type to independent customers during the investigation period represents at least 5 % of the total volume of export sales of the identical or comparable product type to the Union.

(54) The Commission established that MMK did not sell one product type in representative quantities on the domestic market. In addition, all three Russian cooperating exporting producers did not sell certain product types on the domestic market at all.

(55) The Commission next defined the proportion of profitable sales to independent customers on the domestic market for each product type during the investigation period in order to decide whether to use actual domestic sales for the calculation of the normal value, in accordance with Article 2(4) of the basic Regulation.

(57) In such situation, the normal value is the weighted average of the prices of all domestic sales of that product type during the investigation period.

(59) The analysis of domestic sales showed that, depending on the product type, 47 to 100 % of all domestic sales of MMK, 43 to 100 % of all domestic sales of NLMK and 24 to 100 % of all domestic sales of PAOS were profitable and their weighted average sales price was higher than the cost of production. Accordingly, the normal value was calculated as a weighted average of the prices of all domestic sales during the investigation period or a weighted average of the profitable sales only.

(60) For the product types where the weighted average sales price was lower than the cost of production, the normal value was calculated as a weighted average of the profitable sales of that product type.

(61) Where there were no sales of a product type of the like product in the ordinary course of trade or where a product type was not sold in representative quantities on the domestic market, the Commission constructed the normal value in accordance with Article 2(3) and (6) of the basic Regulation.

(63) For the product types not sold in representative quantities on the domestic market, the average SG&A expenses and profit of transactions made in the ordinary course of trade on the domestic market for those types were added. For the product types not sold at all on the domestic market, the weighted average SG&A expenses and profit of all transactions made in the ordinary course of trade on the domestic market were added.

(64) The cost of production was adjusted where justified pursuant to Article 2(5) of the basic Regulation. All three cooperating exporting producers procured certain raw materials from related suppliers. The Commission examined whether those raw materials were purchased at an arms-length price and, where necessary, adjusted the cost of production to reasonably reflect the costs associated with the production and sale of the product concerned.

(65) Following final disclosure, NLMK claimed that such adjustments were unwarranted, in particular, since that the Commission did not take into account the effect of freight cost included in the price of the examined raw materials sold to NLMK and to unrelated customers at various delivery terms although this information was available. The Commission accepted the claim with regard to certain raw materials and revised the normal value accordingly. The revised calculation was disclosed to the company.

(66) Following final disclosure, PAOS submitted that the adjustment of raw material cost under Article 2(5) of the basic Regulation was unlawful. In particular, the company argued that Article 2(5) of the basic Regulation allowed the Commission to depart from the company’s records in two situations: (a) where the records were not in accordance with the generally accepted accounting principles of the country concerned; and (b) where the records did not reasonably reflect the costs associated with the production and sale of the product under investigation. With regard to the second situation, the company referred to paragraph 6.97 of the WTO Appellate Body report in Ukraine – Ammonium Nitrate (Russia) (11), according to which ‘the second condition in the first sentence of Article 2.2.1.1 [of the WTO Anti-dumping Agreement] relates to whether the records kept by the exporter or producer under investigation suitably and sufficiently correspond to or reproduce those costs incurred by the investigated exporter or producer that have a genuine relationship with the production and sale of the specific product under consideration’.

(67) The Commission noted that paragraph 6.97 of the Appellate Body report in Ukraine – Ammonium Nitrate (Russia) should be considered in the context provided by the paragraphs preceding it. Already in EU – Biodiesel (Argentina) (12), the Appellate Body approved that the raw materials prices between related parties could be considered as not at arm’s length and as a consequence could be rejected. Paragraph 6.97 of the Appellate Body report in Ukraine – Ammonium Nitrate (Russia) further clarified that the situations mentioned in the Panel report in EU – Biodiesel (Argentina) should not be understood as open-ended exceptions but should be examined on a case-by-case basis. In the present case, the Commission rejected the prices of certain raw materials purchased by PAOS from related suppliers following a proper analysis and thus in full consistency with the WTO rules. The Commission compared the prices charged by the related supplier to PAOS with those charged by the related supplier to unrelated customers. Based on this the Commission found prices charged by the related supplier to PAOS to be not at arm’s length. Consequently, the claim was rejected.

(68) Furthermore, PAOS claimed that the Commission did not employ the correct methodology when analysing whether the price of certain raw materials paid between PAOS and its related suppliers was at arm’s length. The company argued that the Commission should have compared the prices paid by PAOS when purchasing a raw material from its related suppliers with the prices charged by independent suppliers.

(69) In this respect, the Commission noted that it was an established practice to use the prices charged by the related supplier for the arm’s length price analysis. In the present case, the sales prices of the related supplier to PAOS and to unrelated customers were available and verified. Therefore, the Commission found it appropriate to use the verified information for its analysis. In addition, the company did not provide any explanation for the price difference other than the relation between the supplier and PAOS. Consequently, the Commission rejected the claim.

(70) Finally, PAOS commented on a number of technical details concerning the analysis of the arm’s length prices. First, the company objected to the rejection of financial income in the calculation of loss generated by the supplier of coal. Second, the company argued that the Commission did not reflect correctly, in the price comparison, the differences in certain coal grades purchased by PAOS. Third, the company pointed out a clerical error in the calculation of total consumption of coal. Fourth, the company claimed that the Commission incorrectly compared the sales price of iron ore pellets to unrelated customers with the resales price charged by PAOS for iron ore pellets, which were purchased from the related supplier for the sole purpose of their resale. Fifth, the company claimed that the Commission did not take into account the differences in delivery terms and thus in freight cost included in the sales price of iron ore pellets when supplied to PAOS and to unrelated customers. And sixth, where the Commission conducted the price analysis for a broad category of iron ore pellets (fluxed and non-fluxed), the company claimed that certain pellets, for which the information was not specified in the purchase listing, should be considered either as fluxed or as non-fluxed.

(71) The Commission examined the claims and concluded that points two, three and four described in recital (70), warranted a correction in the calculation of the cost adjustment. In this respect, the Commission compared the price of the coal grade in question with the most similar coal grade, corrected the clerical error in the calculation of the total consumption of coal, and used the sales price of iron ore pellets for PAOS’ consumption for the arm’s length price analysis. The corrected figures were re-disclosed to the company.

(73) The Russian cooperating exporting producers exported to the Union through related companies acting as an importer pursuant to Article 2(9) of the basic Regulation or through related traders located in a third country.

(74) MMK reported sales of CRS to the Union via MMK Steel Trade, a related trader located in Switzerland, and via another company located in Switzerland that MMK described as unrelated (hereinafter ‘the Swiss trader’).

(75) With regard to the Swiss trader, the Commission enquired about the nature of its relationship to MMK. In particular, the Commission analysed publicly available documents issued by MMK, such as the consolidated financial statements of the MMK Group (13), disclosures of transactions with interested parties (14), annual reports and their annexes (15), and readily available information available in market intelligence databases, such as Dun & Bradstreet.

(76) The information provided by the company and collected by the Commission from other sources led the Commission to conclude that MMK provided misleading information concerning its relationship with the Swiss trader, thereby impeding the investigation. For confidentiality reasons, the analysis leading to the Commission’s conclusion has been disclosed only to MMK.

(77) As a result, the Commission had no information on the resale prices of transactions to the first independent customer in the Union for sales made via the Swiss trader, nor on its concrete functions, and therefore it was not able to establish the export price for one channel of the company’s sales on the Union market. Therefore, the Commission informed the company of its intention to apply Article 18 of the basic Regulation in relation to the information that it failed to provide.

(78) The explanations provided by MMK, following the Article 18 letter, did not change the Commission’s conclusion that MMK provided misleading information concerning its relationship with the Swiss trader, thereby impeding the investigation. For confidentiality reasons, the analysis of MMK’s comments on the intended application of Article 18 of the basic Regulation was disclosed only to MMK.

(79) As a result, the Commission confirmed the application of Article 18 of the basic Regulation to the sales on the Union market carried out via the Swiss trader. In this respect, the Commission based the determination of the dumping margin for this sales channel on the dumping margins calculated for sales carried out via MMK Steel Trade.

(80) In its comments on final disclosure, MMK submitted that the Commission made an error by applying Article 18 of the basic Regulation to MMK in relation to the Swiss trader. In this respect, the company claimed that the Commission failed to take into account certain documents provided by MMK and reiterated its explanation of the contradictions found by the Commission. Furthermore, MMK submitted that the Commission breached the legal standard set by Article 18 of the basic Regulation in selecting the facts available by selecting those facts with a specific aim of penalizing MMK by applying adverse facts available which is completely incompatible with the object and purpose of Article 18 of the basic Regulation.

(81) MMK provided no new evidence regarding the relationship with the Swiss trader. The Commission had already carefully analysed all information including the documents referred to by the company. In addition, the Commission found that the company did not provide any evidence supporting the explanation of the contradicting information on the relationship between MMK and the Swiss trader. Therefore, the Commission confirmed the application of Article 18 of the basic Regulation.

(82) Regarding the claim that the Commission breached the legal standard of Article 18 of the basic Regulation, the Commission disagrees. As explained above, the Commission was not able to establish the export price for one whole sales channel of the company’s sales on the Union market, and therefore it based the dumping margin for this sales channel on the dumping margins calculated for sales carried out via a related trader, MMK Steel Trade, for which it could establish the export price.

(83) This approach is fully in line with the relevant WTO rules and the EU law. According to WTO Panel report on United States – Anti-dumping and countervailing duties on certain products and the use of facts available (16), when applying facts available investigating authorities are required to select, in an unbiased and objective manner, those facts available that constitute reasonable replacements for the missing ‘necessary’ information in the specific facts and circumstances of a given case. In doing so, investigating authorities must take into account all facts that are properly available to them. In selecting the replacement facts, Article 6.8 of the WTO Anti-dumping Agreement does not require investigating authorities to select those facts that are most ‘favourable’ to the non-cooperating party. Investigating authorities may take into account the procedural circumstances in which information is missing, but Article 6.8 does not condone the selection of replacement facts for the purpose of punishing interested party.

(84) The approach of the Commission fully followed this prescription. In an unbiased manner, it took the actual and verified pricing behaviour of MMK observed in a sales channel for which the Commission was able to verify the relevant data and used it as a model of pricing behaviours for the channel where the data was not provided. It used an average dumping amount for a product type representative of the company’s known dumping potential during the investigation period. In the circumstances where the company chose not to provide the Commission with a large proportion of its export sales, using an actual and verified pricing behaviour practiced by the company during the investigation period as a model cannot be said to be subjective or punitive. It leads to as accurate dumping and injury margins as possible in the context of the company’s significant lack of cooperation, and thus complies with the WTO jurisprudence quoted by MMK. Consequently, the Commission rejected the claim.

(85) As mentioned in recital (35), MMK requested a hearing with the Hearing Officer. At the hearing, MMK pointed out that, in its Article 18 letter, the Commission stated it would apply Article 18(3) of the basic Regulation. The company requested a clarification of the legal basis as the general disclosure document only mentioned Article 18 of the basic Regulation. In this respect, the company asserted that the Commission should have applied the provisions of Article 18(3) of the basic Regulation as the MMK responded to all the Commission’s requests for necessary information, did not provide misleading information, and did not impede the investigation. Moreover, the company submitted that the Commission had never requested the information on the export prices of the Swiss trader. Finally, MMK reiterated that the Commission breached the legal standard of Article 18 of the basic Regulation when applying facts available.

(86) Indeed, the reference to Article 18(3) in the Article 18 letter was an obvious clerical error since the letter also said that the Commission services concluded MMK provided misleading information, thereby impeding the investigation, as provided for in Article 18(1) of the basic Regulation. It is clear from the language of the Article 18 letter and the facts of the case that the conditions for the acceptance of deficient data under Article 18(3) of the basic Regulation were not met since the data – export prices to the first independent customer – was not provided and hence not verifiable. Furthermore, it is clear that the party did not act to the best of its ability. The Commission also noted that MMK’s reply to the Article 18 letter unequivocally showed that MMK understood that the circumstances called for Article 18(1) of the basic Regulation and that the Commission would turn to facts available. This is why in that response MMK argued which sets of information should be used in place of the disregarded data.

(87) Moreover, that the reference to Article 18(3) of the basic Regulation was a clerical error was confirmed by the fact that there was no reference to Article 18(3) of the basic Regulation in the general disclosure document.

(88) With regard to the claims listed in recital (85) concerning the cooperation of the company, the Commission noted that the company misled the Commission with regard to the relationship established between MMK and the Swiss trader as it continued claiming that the companies were not related. In addition, the company failed to provide the export prices of the Swiss trader, i.e. information necessary for the determination of the dumping margin. The Commission considered that the company wrongly claimed that the Commission never requested the export prices of the Swiss trader. In the questionnaire for exporting producers published on DG Trade’s website on the date of the initiation of the investigation, related companies involved in sales of the product under investigation to the Union are clearly required to fill in Annex I to the questionnaire (17). Consequently, the continued denial of the relationship between MMK and the Swiss trader and the failure to provide export prices of the Swiss trader impeded the investigation.

(89) Therefore, the Commission confirmed that it considered the facts to fit under Article 18(1) of the basic Regulation. Yet, as explained in recitals (82) to (84), the Commission sought to establish what facts available, on the basis of the actual information provided by the company at issue, would constitute a reasonable replacement for the missing necessary information in this case.

(90) Following the recommendations of the Hearing Officer, the Commission carefully considered the issues raised by the company at the hearing and informed the Hearing Officer of its conclusions.

(91) In addition to the clarifications provided in recitals (81) to (84) and (86) to (89), the Commission disclosed a more detailed analysis of MMK’s comments on final disclosure and presented at the hearing only to the company for confidentiality reasons.

(92) PAOS exported to the Union via Severstal Export GmbH, a related trader located in Switzerland, and SIA Severstal Distribution, a related importer located in Latvia. SDE is a service centre, which sold CRS to unrelated customers in the Union both without processing and also after further processing.

(93) SDE did not submit information on purchases and stocks of CRS in its questionnaire and deficiency replies. The company was reminded to provide this data by e-mails sent on 15 November 2021 and 25 January 2022. Despite the request in the deficiency letter and the aforementioned reminders, the company did not provide the missing information until the first day of the on-spot verification visit. The Commission was therefore unable to analyse the purchase data before the verification visit, in particular to check it for consistency with other parts of the questionnaire and deficiency replies. Purchase data of a related trader is generally used to connect sales of an exporting producer to its trader or importer with subsequent resales and is crucial for determining the export price.

(94) Already during the verification visit at the premises of SDE, the Commission noticed and brought to the company’s attention issues with the product types assigned to resales transactions by SDE. The Commission selected a sample of resales transactions and checked the available documents supporting the information submitted by the company, including the technical specifications of the products sold. The Commission collected supporting documents related to a sample of twelve sales invoices. In four cases, the Commission observed that the product type was assigned incorrectly. The company agreed to make corrections. It, however, claimed that it would be too burdensome to cross-check all potentially affected resales transactions with the technical specifications agreed in the sales orders. Therefore, the company suggested to use a methodology based on the product types sold by PAOS to SDE. This issue was properly recorded in the verification report, which was shared with the company. The company had the opportunity to comment on potential factual errors. Nevertheless, SDE did not object to any part of the verification report.

(95) Following the on-spot verification, the Commission cross-checked the purchase data that was provided by SDE only during the verification visit with the corresponding sales data of PAOS. The Commission noted that the two datasets were still inconsistent as far as product types were concerned.

(96) In this respect, product types reported by SDE as purchased in the investigation period from PAOS but not reported by PAOS as sold to SDE represented approximately 30 % of the total purchased volume reported by SDE.

(97) Instead of dismissing the whole dataset outright, the Commission used the resales transactions, to which the product types were attributed correctly, to determine the dumping margin of resales transactions with incorrectly attributed product types.

(98) The Commission concluded that PAOS did not provide within the time limits set the necessary information, thereby impeding the investigation. The Commission informed the company that it intended to apply Article 18 of the basic Regulation to the extent of the information that the company failed to provide.

(99) In its comments on the Article 18 letter, the company stated that it provided all data including intermediate files where requested. It further recalled that the creation of product types was explained to and verified by the Commission. Where the Commission identified errors in reported product types, the company provided corrections. PAOS argued that the information on purchases was not used in the dumping calculation. It further pointed out that the Commission never raised these issues during the remote cross-checks and on-spot verifications. With regard to the Commission’s conclusion on the impossibility to identify the product types sold by SDE on the Union market, the company recalled its explanations provided in the deficiency reply. According to the company, SDE was not able to provide a transaction-by-transaction link between purchased and sold goods due to storage, and a mismatch between the mix of supplies and mix of sales.

(100) The Commission does not contest that eventually, PAOS and SDE provided the information requested in the questionnaire. Nevertheless, the late provision of certain information seriously impeded the Commission’s ability to properly analyse the data.

(101) Although the information on purchases is not directly used in the dumping margin calculation, it is a tool for cross-checking and verifying the internal consistency of information submitted by the producer and its related importer that is used in the calculation. In this case, the comparison of PAOS’ sales data with SDE’s purchase data during the same period, the investigation period, revealed an incorrect reporting of product types by either PAOS or SDE.

(102) Furthermore, the Commission could not be aware of the extent of this issue during the remote cross-checks and the on-spot verification since SDE only provided its purchase data on the first day of the verification, thus not leaving the Commission any time to analyse the information beforehand. Nevertheless, already during the verification visit the Commission did point out that in the sample of sales transactions that were verified in detail some product types were reported incorrectly.

(103) Finally, the fact that there was no direct link between PAOS’ sales data and SDE’s resales data was not the issue at hand. The Commission observed that indeed, the goods resold by SDE during the investigation period were to a certain extent purchased before the investigation period. However, the main issue was that the product types reported as purchased by SDE from PAOS during the investigation period in many cases did not match the product types reported as sold by PAOS to SDE during the investigation period. As a result, the Commission was not able to determine or verify which product types, that were produced by PAOS, were actually resold by SDE in the Union market during the investigation period.

(104) In view of the above, the Commission confirmed the application of Article 18 of the basic Regulation to the sales on the Union market of certain product types via SDE.

(105) Consequently, for PAOS’ sales to the Union via SDE acting as an importer, for transactions where the product type was identified correctly, the export price was established on the basis of the price at which the imported product was first resold to independent customers in the Union, in accordance with Article 2(9) of the basic Regulation. In this case, adjustments to the price were made for all costs incurred between importation and resale, including SG&A expenses, processing cost, and for profits accruing. The Commission used facts available to determine the export price and subsequently the dumping margin of the incorrectly assigned product types sold to the Union via SDE.

(106) Following final disclosure, PAOS claimed that the application of Article 18 of the basic Regulation was not warranted. In particular, the company argued that the information it submitted was merely ‘not ideal in all aspects’ and that it was provided in time since the Commission received the previously missing information well before the final disclosure. Furthermore, the company claimed that the Commission should have contacted the company when it discovered the inconsistencies in the reported product types. PAOS argued that the inconsistencies resulted from the producer using the actual zinc coating mass (measured in the production) while SDE using the nominal zinc coating mass (included in the company’s product codes).

(107) In addition to the Commission’s decision to apply Article 18 of the basic Regulation, PAOS also contested the choice of facts available. Instead of assigning to the affected product types the highest dumping margin, which was calculated for a product type representing only 0,01 – 0,03 % of the company’s exports in the IP, the Commission should have used the dumping margin of the most representative product type in terms of sales quantity. Alternatively, the company suggested the Commission use the average dumping margin of correctly reported product types.

(108) First, the Commission disagrees with the company’s assessment of timely provision of data that was merely ‘not ideal in all aspects’. The information on purchases by SDE was provided at a time which made it impossible for the Commission to verify any potential corrections that would have been provided after the verifications and/or remote cross-checks. Therefore, the Commission contacting the company after the inconsistencies had been discovered would remain without effect. Moreover, an incorrect assignment of product types is not a mere inconvenience. At the beginning of the investigation, the Commission defined product types based on certain characteristics that influenced the costs and prices of CRS to enable proper comparison. Without correct product types, it is not possible to compare the domestic sales price with the cost of production to determine the normal value per product type, nor is it possible to compare the normal value with the export price to establish the dumping margin per product type. Second, the fact that the inconsistencies allegedly stemmed only from different approaches by PAOS and SDE to the reporting of zinc coating mass did not change the fact that the product types were assigned incorrectly. It was the company’s responsibility to ensure accuracy and consistency in the reporting. Moreover, it follows from the remote cross-check that PAOS actually used three different approaches to determine the zinc coating mass. Thus, the clarification provided after final disclosure could not be accepted. Consequently, the Commission rejected the claim that the application of Article 18 of the basic Regulation was not warranted.

(109) With regard to the choice of facts available, the Commission noted that none of the product types was substantially more representative of total PAOS’ sales in the Union market. The product type suggested by the company represented only 1 – 3 % of the company’s export sales. In addition, using the average dumping margin of all the correctly reported product types would have the same effect on the overall dumping margin as completely disregarding the sales with unknown product types. In the present case, those sales transactions represented a vast majority of all PAOS’ sales in the Union. Therefore, the Commission considered that using the highest average dumping amount established for a product type appropriately reflected the company’s potential for dumping behaviour. Consequently, the Commission rejected PAOS’ claim concerning the choice of facts available.

(110) The Commission compared the normal value and the export price of the exporting producers on an ex-works basis.

(111) Where justified by the need to ensure a fair comparison, the Commission adjusted the normal value and/or the export price for differences affecting prices and price comparability, in accordance with Article 2(10) of the basic Regulation. Adjustments were made for transport, insurance, handling and loading, packing, credit cost and commissions.

(112) Two companies claimed an adjustment for discounts according to Article 2(10)(c) of the basic Regulation. Since the companies were not able to reconcile the value of the adjustment claimed with their accounting records, the Commission rejected those claims.

(113) Following final disclosure, NLMK contested the Commission’s calculation of certain adjustments to the export price. The company claimed that the Commission should have adjusted the export price of goods sold during the IP but purchased by the related trader before the IP for the freight cost actually incurred by the trader before the IP (instead of using the freight cost incurred during the IP at the same delivery term and for the same country of destination). In particular, the company claimed that the deduction would have been lower if the Commission used the freight cost incurred before the IP.

(114) The Commission examined this claim and found it unwarranted. In particular, the difference pointed to by the company was not caused by the use of freight cost incurred during the IP but by the fact that the relevant adjustment to the export price did not only cover the freight cost but also an allowance for packing. Consequently, the claim was rejected. For confidentiality reasons, the detailed analysis of this claim was sent only to NLMK.

(115) Following final disclosure, PAOS submitted that the Commission should not have rejected the allowance for freight cost incurred between the company and its related domestic trader or between the warehouses of the related trader since the cost is included in the sales price. In addition, the company claimed that the Commission should not have rejected the allowance for discounts since the company was able to reconcile with its accounting records the discount granted to its customer with the highest value of discount during the IP.

(116) With regard to the freight cost, the Commission noted that it was not disputed whether the company and/or its related trader actually incurred the freight cost. In the present case, in accordance with Article 2(1) of the Basic Regulation, the point at which the sale to the first unrelated customer occurred – which was either the producer’s premises in case of direct domestic sales to unrelated customers, or otherwise the related domestic trader’s premises – was considered the appropriate point to establish the ex-works price of domestic sales.

(117) With regard to the allowance for discounts, the Commission reiterated that during the remote cross-check, the company was not able to reconcile the claimed allowance for discounts with its accounting records with the exception of one customer. Following the comments of the company on final disclosure, the Commission examined to what extent it was possible to reconcile the value of discounts granted to the customer in question. The Commission clarified that the requested allowance matched the value in an intermediary preparation worksheet of the company, yet not the accounting records. With regard to other customers randomly selected for cross-check, the requested allowance did not even match the preparation worksheet. Subsequently, the Commission confirmed its rejection.

(118) All three Russian cooperating exporting producers exported to the Union via related traders located in a third country.

(119) MMK Steel Trade performed functions equivalent to that of an agent working on a commission basis within the meaning of Article 2(10)(i) of the basic Regulation. Therefore, the Commission adjusted the export price to ensure fair comparison. The Commission deducted from the export price charged to the first independent customer the SG&A of MMK Steel Trade and a reasonable profit, based on the profit of an unrelated importer

(120) No unrelated importer came forward in the present investigation. Therefore, the Commission used the profit of an unrelated importer in the Union established on the basis of the findings of a previous investigation on imports of products similar to the product under investigation (18). The profit was 2 %.

(121) NLMK exported to the Union via NLMK Trading SA, a related trader located in Switzerland. After analysing its functions, NLMK Trading was considered to perform functions equivalent to that of an agent working on a commission basis within the meaning of Article 2(10)(i) of the basic Regulation. For confidentiality reasons, the Commission’s analysis has been disclosed only to NLMK.

(122) Consequently, the Commission adjusted the export price to ensure fair comparison. The Commission deducted from the export price charged to the first independent customer the SG&A of NLMK Trading and a reasonable profit, based on the profit of an unrelated importer.

(123) Following final disclosure, NLMK claimed that there was no legal basis for the Commission to carry out that deduction under Article 2(9) of the basic Regulation. The deduction was, however, carried out under Article 2(10)(i) of the basic Regulation as stated in recitals (121) and (122), and therefore the Commission dismissed the claim.

(124) In addition, NLMK claimed that the conclusions the Commission reached regarding its related company for the export market were equally valid on the domestic market, i.e. the related companies performed similar functions for domestic and export sales. Subsequently, the company requested the Commission to adjust the normal value under Article 2(10)(i) of the basic Regulation with regard to domestic sales via NSSC and NLMK Shop.

(125) The Commission noted that Article 2(1) of the basic Regulation, which determines the normal value, and Articles 2(8) and 2(9) of the basic Regulation, which determine the export price, are worded differently. Pursuant to Article 2(1) of the basic Regulation, it is on the domestic sales’ price to the first independent customer that the normal value needs to be established. An adjustment pursuant to Article 2(10)(i) of the basic Regulation would assume that the relevant sale for the establishment of the normal value would rather be the sale between NLMK and NLMK Shop/NSSC. However, these sales were not sales to independent customers. In those circumstances, a deduction of the mark-up charged by NLMK Shop/NSSC would not be consistent with Article 2(1) of the basic Regulation.

(126) The wording of Article 2(1) of the basic Regulation contrast with the approach and the wording of Articles 2(8) and 2(9) of the basic Regulation. Indeed, the second sentence of Article 2(10)(i) of the basic Regulation, pertaining to a mark-up, was specifically introduced in order to ensure that the mark-up charged by a trader situated outside the Union could be deducted when calculating the export price. Otherwise, the use of a related trader could obscure specifically some of the export-related differences that the comparison between the normal value and the export price at ex-factory level seeks to eliminate. By contrast, on the domestic market, goods will often circulate between related companies or warehouses before being sold, and insofar as the sales expenses and functions of related parties on the domestic market overlap, it is justified to treat related companies as a single economic entity.

(127) In addition, and without prejudice to the above, the Commission noted that NSSC is a service centre further processing corrosion resistant steel produced by NLMK and thus, is an extension of NLMK’s production (19). The company is located in Lipetsk, in the immediate neighbourhood of NLMK’s factory. In light of the company’s integration into the production chain of NLMK, NSSC can therefore not be considered to be carrying on functions similar to those of an agent acting on a commission basis within the meaning of Article 2(10)(i) of the basic Regulation..

(128) Furthermore, with respect to NLMK Shop, the Commission recalled that, during the investigation period, NLMK Shop was involved in a negligible fraction of sales of the like product on the domestic market (less than 2 %). Any adjustment based on Article 2(10)(i) of the basic Regulation, if warranted, would therefore have a negligible impact on the normal value and resulting dumping margin (less than 0,1 % change in margin). Moreover, given that NLMK’s final anti-dumping duty was based on the injury margin, an adjustment to the domestic sales of NLMK via NLMK Shop would not have affected the outcome of the investigation.

(129) Consequently, the Commission rejected the claim.

(130) As mentioned in recital (92), in addition to SDE, PAOS exported to the Union also via Severstal Export GmbH, a related trader located in Switzerland. Severstal Export GmbH performed functions equivalent to that of an agent working on a commission basis within the meaning of Article 2(10)(i) of the basic Regulation. Therefore, the Commission adjusted the export price to ensure fair comparison. The Commission deducted from the export price charged to the first independent customer the SG&A of Severstal Export GmbH and a reasonable profit, based on the profit of an unrelated importer.

(131) Following final disclosure, NLMK claimed that its dumping margin should be calculated on a quarterly basis due to the increasing trends of its cost of manufacturing, normal value and export price throughout the IP in conjunction with an uneven distribution of its sales to the Union.

(132) The Commission noted that a quarterly calculation would only be warranted in very specific circumstances, for example if the cost of production increased considerably throughout the IP combined with the export sales being concentrated in one part of the IP, and the domestic sales in another. In the present case, the production and the domestic sales were evenly distributed over the whole investigation period. In addition, the unit price on the domestic market (+ 6 – 10 % in the second quarter, +10 – 13 % in the third quarter, +25 – 26 % in the fourth quarter) and the unit cost of production (+ 1 – 4 % in the second quarter, +10 – 13 % in the third quarter, +25 – 26 % in the fourth quarter) followed a similar trend over the IP. The company’s pricing decisions on the Union market followed, however, a completely different trend. The export price increased between the first and second quarter by 28 – 32 %, decreased slightly in the third quarter but continued growing and in the fourth quarter reached +43 – 47 % of its value in the first quarter. This increase was not paralleled by the costs of production that only slightly increased between the first and the second quarter then a bit more sharply in the third quarter and significantly in the fourth quarter. It was the company’s decision to price its exports to the Union at a considerably lower level during a quarter, in which the exported quantities were most concentrated. Therefore, the Commission considered that the request for a quarterly calculation was not justified in the present case and subsequently dismissed the claim.

(133) Following the additional final disclosure mentioned in recital (65), NLMK claimed that in accordance with Article 2(10)(j) of the basic Regulation, the Commission should recognise the date of contract as the date when materials terms of trade were established in the present case as far as it concerns the export sales transactions to be used in the dumping calculation. In this respect, the company also referred to a previous investigation (20), in which the contract/purchase order date were used to establish the material terms of trade instead of the invoice date.

(134) The Commission noted that Article 2(10)(j) of the basic Regulation concerned currency conversions and the date of exchange rate used where currency conversions were necessary for the purpose of comparison. The Commission noted that those provisions were not applicable to determine which transactions should be included in the dumping margin calculation. In addition, the Commission noted that in the previous investigation, the date of contract/purchase order was decisive only for the purposes of determining the date of the exchange rate to be used. This is the extent to which a potential adjustment under Article 2(10)(j) of the basic Regulation can be made. This provision cannot be used to exclude transactions from the dumping calculation.

(135) Consequently the Commission rejected the claim.

(136) For the cooperating exporting producers, the Commission compared the weighted average normal value of each type of the like product with the weighted average export price of the corresponding type of the product concerned, in accordance with Article 2(11) and (12) of the basic Regulation.

(137) As explained in recitals (12) to (14), sampling of the Russian exporting producers was abandoned and the investigation was conducted on all cooperating companies.

(138) For all other exporting producers in Russia, the Commission established the dumping margin on the basis of the facts available, in accordance with Article 18 of the basic Regulation. To this end, the Commission determined the level of cooperation of the exporting producers. The level of cooperation is the volume of exports of the cooperating exporting producers to the Union expressed as proportion of the total imports from the country concerned to the Union in the investigation period, that were established on the basis of the Surveillance 2 database as explained in recital (201).

(139) The level of cooperation in this case is high because the exports of the cooperating exporting producers constituted around 98 % of the total imports during the investigation period. On this basis, the Commission found it appropriate to establish the dumping margin for non-cooperating exporting producers at the level of the cooperating company with the highest dumping margin.

(141) The Commission first examined whether the total volume of domestic sales for each sampled exporting producer was representative, in accordance with Article 2(2) of the basic Regulation. The domestic sales are representative if the total domestic sales volume of the like product to independent customers on the domestic market per exporting producer represented at least 5 % of its total export sales volume of the product concerned to the Union during the investigation period. On this basis, the total sales by each sampled exporting producer of the like product on the domestic market were representative.

(142) The Commission subsequently identified the product types sold domestically that were identical or comparable with the product types sold for export to the Union for the exporting producers with representative domestic sales.

(143) The Commission then examined whether the domestic sales by each sampled exporting producer on its domestic market for each product type that is identical or comparable with a product type sold for export to the Union were representative, in accordance with Article 2(2) of the basic Regulation. The domestic sales of a product type are representative if the total volume of domestic sales of that product type to independent customers during the investigation period represents at least 5 % of the total volume of export sales of the identical or comparable product type to the Union.

(144) For each of the three exporters, for some product types that were exported to the Union during the investigation period there were either no domestic sales at all, or the domestic sales of that product type were below 5 % in volume and thus not representative.

(145) The Commission next defined the proportion of profitable sales to independent customers on the domestic market for each product type during the investigation period in order to decide whether to use actual domestic sales for the calculation of the normal value, in accordance with Article 2(4) of the basic Regulation.

(147) In such situation, the normal value is the weighted average of the prices of all domestic sales of that product type during the investigation period.

(149) The analysis of domestic sales showed that, depending on the product type, 14 to 100 % of all domestic sales of MMK Turkey, 28 to 100 % of all domestic sales of Tatmetal and 19 to 100 % of all domestic sales of Tezcan were profitable and that the weighted average sales price was higher than the cost of production. Accordingly, the normal value was calculated as a weighted average of the prices of all domestic sales during the investigation period or a weighted average of the profitable sales only.

(150) For the product types where the weighted average sales price was lower than the cost of production, the normal value was calculated as a weighted average of the profitable sales of that product type.

(151) Where there were no sales of a product type of the like product in the ordinary course of trade or where a product type was not sold in representative quantities on the domestic market, the Commission constructed the normal value in accordance with Article 2(3) and (6) of the basic Regulation.

(153) For the product types not sold in representative quantities on the domestic market, the average SG&A expenses and profit of transactions made in the ordinary course of trade on the domestic market for those types were added. For the product types not sold at all on the domestic market, the weighted average SG&A expenses and profit of all transactions made in the ordinary course of trade on the domestic market were added.

(154) Following final disclosure, MMK Turkey claimed that the Commission made an error when it excluded part of the company’s financial costs from SG&A expenses while constructing normal value.

(155) The excluded financial costs were foreign exchange incomes/losses which were not actual expenses but resulted from the difference in exchange rates between the invoice currency and the accounting currency on the date of transaction and date of payment, and therefore do not reflect the actual SG&A expenses pertaining to the production or sales of the product under investigation. Furthermore, the Commission noted that it took the same approach with respect to all the sampled companies regardless of whether they made losses or gains from foreign exchange. The reason for that approach is that, in extreme cases, not doing so would lead to overall negative SG&A costs which would not reflect actual SG&A expenses. Therefore, this claim was rejected.

(156) Following final disclosure Tezcan indicated that there was an error in the calculation of the costs of one of the raw materials due to double counting of its opening stocks. The Commission corrected this error and re-disclosed a revised dumping calculation to Tezcan. The impact of this correction did not change the dumping margin of the company because the final dumping margins are expressed at the level of the first digit after coma.

(157) The same company claimed that, in the amendments done to its cost of production, the Commission did not take into account differences in the cost of coils used for the production of exported and domestically sold CRS which allegedly resulted from a duty exemption scheme used by the company.

(158) The investigation revealed that the imported and domestically purchased coils cannot be linked directly to the manufacturing of either exported or domestically sold products and that, for the duty exemption system, an exporting producer can use ‘equivalent goods’ instead of the imported goods stated in the authorisation certificate. Therefore, the Commission could not establish any difference in the actual cost of manufacturing of CRS for export and domestic market resulting from the use of the duty exemption scheme. Therefore, this claim was rejected.

(159) Finally, in its comments on disclosure and at a hearing with the Commission services, Tezcan claimed that the Commission wrongly used its cost of production for the domestic market (‘DMCOP’) instead of the cost of production for exports to the EU (‘EUCOP’) in the construction of normal value for those product types which were not sold domestically in the IP. The company claimed that this is inconsistent with the Commission’s description of the methodology provided in the specific disclosure, the Commission’s ‘long-standing practice’ and EU jurisprudence. The company further claimed that actually EUCOP should have been used also in the construction of the normal value for those product types which had ‘extremely limited’ domestic sales in the IP.

(160) The Commission’s practice is to construct normal value on the basis of DMCOP and the SG&A expenses and profit of transactions made in the ordinary course of trade on the domestic market. EUCOP is used only if there is no DMCOP for specific types of products in the IP. This practice is consistent with the Court case quoted by Tezcan, that states that ‘the purpose of constructing the normal value is to determine the selling price of a product as it would be if that product were sold in its country of origin or in the exporting country (21)’. In this investigation, the product types at issue were manufactured in the IP for the domestic market but were not sold, i.e. they remained in stock at the end of the IP. The company rightly reported a DMCOP for these product types. The DMCOP was verified by the Commission. The wording of the methodology provided in the specific disclosure referring to product types ‘not sold domestically’, for which EUCOP is to be used in the construction of normal value, is intended to mean product types ‘where DMCOP did not exist’. The wording is a general description of what the Commission does when constructing normal value and is not tailored for unusual cases where there are specific domestic costs of productions but no sales. However, this wording certainly does not reflect the practice of the Commission which follows the case-law recalled by the exporting producer and which was referred to above, as normal value should first be based on the costs and prices in the domestic market. Therefore, the claim was rejected.

(161) As mentioned in recital (35), Tezcan requested the intervention of the Hearing Officer on this issue. Tezcan reiterated the claim described in recital (159) and added that at the hearing with the Commission services, the Commission had orally agreed to accept this claim. The Commission wishes to clarify the situation. Indeed, during the hearing the Commission told the company that the claim and its bases were understood and that they could move on to following points. Still the Commission advised the company to leave the claim in writing in the submission. However, after a closer analysis of the claim after the hearing, the Commission concluded that the claim was not justified for the reasons explained in recital (160). The Commission informed the Hearing Officer of its further reflections and the conclusions.

(162) All the sampled exporting producers exported to the Union directly to independent customers. Therefore, their export price was the price actually paid or payable for the product concerned when sold for export to the Union, in accordance with Article 2(8) of the basic Regulation.

(163) The Commission compared the normal value and the export price of the sampled exporting producers on an ex-works basis.

(164) Where justified by the need to ensure a fair comparison, the Commission adjusted the normal value and/or the export price for differences affecting prices and price comparability, in accordance with Article 2(10) of the basic Regulation. Adjustments were made for transport, insurance, handling, loading and ancillary costs, credit costs, commissions and packing expenses.

(165) Following final disclosure, MMK Turkey claimed that the Commission wrongly treated some domestic transport costs between the two production sites of the company as internal transport costs and provided evidence that these costs were not internal. The Commission found the claim justified in view of the evidence and re-disclosed a revised dumping calculation to MMK. As a result MMK Turkey’s dumping margin decreased from 10,6 % to 10,5 %.

(166) Two sampled exporting producers made a claim under Article 2(10)(b) of the basic Regulation for a duty drawback adjustment, arguing that the existence of a duty drawback scheme for certain input materials in the country concerned implies that all their domestic sales would incorporate an indirect tax compared to the export sales.

(167) In Turkey, an import duty applies to hot rolled coils, which are an input in the manufacture of the CRS. Under the inward processing regime (IPR), domestic producers are exempted from the payment of such duty if the imported raw material is used to produce finished products that are finally exported. The two sampled exporters claimed that the amount of duties they would have paid if the finished CRS were sold domestically instead of exported should be taken into account for the purpose of fair comparison of the normal value and the export price.

(168) However, the investigation showed that none of the two sampled exporters paid any import duty during the investigation period, neither for domestic sales, nor for export sales as they fulfilled the export commitment linked to each IPR permit. As such, there could be no issue of price comparability between exports of CRS, incorporating hot rolled coils for which a duty was not paid, and domestic sales of CRS, incorporating hot rolled coils for which an import duty was paid (as the latter situation never arose during the investigation period). Neither exporting producer was able to substantiate with any evidence that absent the actual payment of import duties, domestically sold CRS incorporated the cost of the import duty on hot rolled coils in instances were no such import duty was actually paid. This cannot simply be presumed to be the case. For these reasons, the claim was considered unfounded and therefore rejected.

(169) Following final disclosure, Tatmetal reiterated its claims with regard to the duty drawback adjustment, but it provided no new evidence that could change the Commission’s conclusion as explained in recital (129). Therefore, this claim is rejected.

(170) One sampled producer requested the Commission to use the quarterly method to establish its individual dumping margin due to high inflation in Turkey and the decreasing values of the Turkish lira.

(171) The Commission analysed this claim and determined that the average inflation rate and devaluation of the Turkish lira in the investigation period were not of such magnitude as to justify deviating from the Commission’s consistent practice to calculate the dumping margin on an annual basis. Furthermore, the company has almost all domestic sales and all raw-material purchases in USD, so the impact of the exchange rate should be similar on normal value and on export price. Moreover, there was no concentration of domestic or export sales in any particular quarter, but sales were evenly distributed over the investigation period, except for a decline, for all three sampled companies, in export sales in quarter three which was clearly affected by the COVID restrictions. Therefore, the request for a quarterly calculation of dumping margins was rejected.

(172) Following final disclosure, Tezcan reiterated its claim that the dumping margin should be calculated quarterly. The company provided no new evidence, but argued that in the previous investigations, several against Turkey, the Commission resorted to this method and that the 12 % inflation rate in Turkey and 37 % devaluation of the Turkish lira against the euro in the IP would justify this approach.

(173) The company further argued that in a situation where the costs are weight-averaged for 12 months whereas the profitability of domestic sales is analysed on a transaction by transaction basis, some transactions were treated as loss making while in reality they were profitable, resulting in a distorted dumping margin, and quarterly calculations would result in a more adequate dumping margin.

(174) The Commission maintained that in this case neither the level of the inflation nor the Turkish lira devaluation rates justified such an approach. The Commission noted that in the previous investigations against Turkey quoted by Tezcan the inflation rates were significantly higher.

(175) Similarly, the Commission maintained its conclusion that in this investigation there was no concentration of domestic or export sales in any particular quarter that would justify quarterly calculations. Quarterly variations of domestic and exports sales are bound to occur, but it is only in exceptional situations that the Commission may set aside its standard methodology, for example in a situation described in the first sentence of recital (132). The Commission did not consider that the variation in the present case was so significant as to justify a quarterly calculation. Indeed, the Commission reiterated that it cannot be under an obligation to deviate from the standard methodology as set out in the basic Regulation whenever an exporting producer requests a different methodology that would improve its dumping margin.

(176) Consequently, the Commission upheld its rejection of this claim.

(177) Following final disclosure, Tezcan claimed that, should the Commission not exclude AluZinc CRS from the product scope, it should recalculate its dumping margin without AluZinc because it stopped producing it as of September 2021. This way Tezcan’s dumping margin would appropriately and adequately reflect present day reality. Tezcan added that the stop in production is manifest, undisputed and lasting. Tezcan also raised this claim at the hearing with the Hearing Officer, although the initial request for a hearing was limited to the claim regarding the use of EUCOP instead of DMCOP and Tezcan only asked to add this part, and submitted its presentation on the issue, one day before the hearing took place.

(178) The Commission disagreed with the claim. As provided in Article 6(1) of the basic Regulation, information relating to a period subsequent to the investigation period shall, normally, not be taken into account. Indeed, as per Commission’s practice, events relating to a period subsequent to the IP can only be taken into account if they are manifest, undisputed and lasting. More importantly, as clarified by the General Court in Case T-462/04 (22), such events would need to make the anti-dumping duty manifestly inappropriate. That is not the case in this investigation as, based on the facts it verified, the Commission cannot establish with sufficient certainty that Tezcan will not produce AluZinc in the future. Even if this would have been the case, the exporting producer did not present any evidence showing, nor indeed argue, that the proposed duty was manifestly inappropriate. Therefore, the Commission rejected the claim.

(179) For the sampled cooperating exporting producers, the Commission compared the weighted average normal value of each type of the like product with the weighted average export price of the corresponding type of the product concerned, in accordance with Article 2(11) and (12) of the basic Regulation.

(180) For the cooperating exporting producers outside the sample, the Commission calculated the weighted average dumping margin, in accordance with Article 9(6) of the basic Regulation. Therefore, that margin was established on the basis of the margins of the three sampled exporting producers.

(181) On this basis, the definitive dumping margin of the cooperating exporting producers outside the sample is 8 %. This margin was not affected by the slight changes in individual dumping margins of MMK Turkey and Tezcan described in recitals (156) and (165).

(182) For all other exporting producers in Turkey, the Commission established the dumping margin on the basis of the facts available, in accordance with Article 18 of the basic Regulation. To this end, the Commission determined the level of cooperation of the exporting producers. The level of cooperation is the volume of exports of the cooperating exporting producers to the Union expressed as proportion of the total imports from the country concerned to the Union in the investigation period, that were established on the basis of the Surveillance 2 database as explained in recital (201).

(183) The level of cooperation in this case is high because the exports of the cooperating exporting producers constituted 100 % of the total imports during the investigation period. On this basis, the Commission found it appropriate to establish the dumping margin for non-cooperating exporting producers at the level of the sampled company with the highest dumping margin.

(185) The like product was manufactured by 20 producers in the Union during the investigation period. They constitute the ‘Union industry’ within the meaning of Article 4(1) of the basic Regulation.

(186) Russian exporting producers claimed that Steel Service Centres (‘SSCs’) related to the complainants imported the product under investigation from Russia and Turkey and that such Union producers should be disqualified as complainants.

(187) Russian exporting producers submitted no evidence of imports from Russia and Turkey by Union producers nor evidence of such imports in significant volumes by SSCs related to them. The verification visits confirmed that the Russian producers’ claim was groundless as far as sampled Union producers were concerned. The Commission dismissed the claim.

(188) Russian producers pointed to links between one of the producers supporting the complaint and Turkish exporters and called on the Commission to exclude the company concerned from the definition of Union industry.

(189) At initial stage, the company concerned itself acknowledged to have business interests in Turkey (23). However, the Commission found those interests insufficient to disqualify it as a Union producer in this investigation because they concern rather future plans. Thus, there was no objective reason to exclude this producer.

(190) The total Union production during the investigation period was established at 9 797 517 tonnes, including production for the captive market. The Commission established the figure on the basis of the questionnaire replies received from Eurofer and the sampled Union producers.

(191) As indicated in recital (7), the four sampled Union producers represented 25 % of the total Union production of the like product.

(192) To establish whether the Union industry suffered injury and to determine consumption and the various economic indicators related to the situation of the Union industry, the Commission examined whether and to what extent the subsequent use of the Union industry’s production of the like product (i.e., captive use or non-captive use) had to be taken into account in the analysis.

(193) The Commission found that a substantial part of the Union producers’ production, ca. 22 %, was destined for the captive market in the Union. CRS is captively used as an intermediate material for the production of organic coated steel.

(194) The distinction between captive and free market is relevant for the injury analysis in this case. Products destined for captive use are not exposed to direct competition from imports, but simply transferred to the next stage in production and/or delivered at transfer prices within the same company or groups of companies for further downstream processing according to the various price policies. By contrast, production destined for free market sale is in direct competition with imports of the product concerned and is sold at free market prices.

(195) To provide a picture of the Union industry that is as complete as possible, the Commission obtained data for the entire CRS activity and determined whether the production was destined for captive use or for the free market.

(196) The Commission examined certain economic indicators relating to the Union industry on the basis of data for the free market. These indicators are: sales volume and sales prices on the Union market; market share; growth; export volume and prices; profitability; return on investment; and cash flow. Where possible and justified, the findings of the examination were compared with the data for the captive market in order to provide a complete picture of the situation of the Union industry.

(197) However, other economic indicators could meaningfully be examined only by referring to the whole CRS activity, including the captive use of the Union industry. These are: production; capacity, capacity utilisation; investments; stocks; employment; productivity; wages; and ability to raise capital. They depend on the whole activity, whether the production is captive or sold on the free market.

(198) Following the request of several exporting producers, the Commission asked the complainant to supplement the information presented in the open version of the complaint as regards import volumes and values. The files supplementing Annex I-1 to the complaint were made available in the case file (24).

(199) Pursuant to Article 14(6) of the basic Regulation, in the course of the investigation, the Commission provided information on aggregated import volumes and values per exporting country for the calendar year 2020 for the product under investigation (25).

(200) The additional information described in the two recitals above was without prejudice to the final determination of import volumes in the current investigation.

(201) During the investigation, the Commission cross-checked the data in the Comext database with those in Surveillance 2 database (‘Surveillance 2’) and noticed some discrepancies at TARIC level. The Commission inquired the issue with Eurostat and it found that some Member States had not reported some of the imports concerned in Comext. The Commission therefore decided to rely on Surveillance 2 data to determine the Union market, import prices and market shares.

(202) Some product types covered by the investigation were only attributed a 10-digit TARIC code upon initiation of the anti-circumvention investigation in November 2019 (26). As a result, data for those types was not available in Surveillance 2 for the period 2017–2019. Therefore, the Commission established those volumes on the basis of Table 1 of Commission Implementing Regulation (EU) 2020/1156 (27).

(203) The Commission established the Union consumption on the basis of: (a) Eurofer data concerning Union industry’s sales and captive use (including captive sales) of the like product, cross-checked with the sales and captive use volumes reported by sampled Union producers; and (b) imports of the product under investigation into the Union from all third countries as reported in Surveillance 2.

(205) During the period considered, the Union consumption decreased by 7 %. In the same period, demand on the free market dropped by 5 % while demand in the captive market dropped by 13 %.

(206) The Commission examined whether imports of CRS originating in the countries concerned should be assessed cumulatively, in accordance with Article 3(4) of the basic Regulation.

(208) The margins of dumping established in relation to the imports from each of the two countries concerned are summarised under recitals (140) and (184). They are all above the de minimis threshold laid down in Article 9(3) of the basic Regulation.

(209) The volume of imports from each of the countries concerned was not negligible within the meaning of Article 5(7) of the basic Regulation. Market shares in the investigation period were 9,3 % for imports from Turkey and 3,5 % for imports from Russia. After final disclosure, GOR submitted that the Russian market share of 3,5 % was insignificant, a claim which however was unsubstantiated.

(210) The conditions of competition between the dumped imports from Turkey and Russia and between the dumped imports from the countries concerned and the like product were similar during the period concerned. More specifically, the imported products competed with each other and with CRS produced in the Union in a similar manner, they are sold through the same sales channels and to similar categories of customers. The product concerned is a commodity and competition took place largely based on prices alone.

(211) Therefore, all the criteria set out in Article 3(4) of the basic Regulation were met and imports from Turkey and Russia were examined cumulatively for the purposes of the injury determination.

(212) The Commission established the volume of imports on the basis of Surveillance 2, as explained in Section 4.2.2. The market share of the imports from the countries concerned was established by comparing those imports with the Union consumption with the adjustment with regard to imports from China as explained in recital (202) which had a bearing on Chinese and, thus, total import volumes and therefore also on consumption volumes and market shares.

(214) Imports from the countries concerned as well as their market share increased by more than five-fold over the period considered. The Union market share of imports from the countries concerned was 12,9 % during the investigation period. Such increase took place despite a safeguard measure being in place during most part of the period considered, due to the fact that, under the safeguard measure, both countries exported the product concerned under the residual quota, which was large enough to allow these increased volumes free-of-safeguard duty into the Union market.

(215) The Commission established the prices of imports on the basis of Surveillance 2, as explained in Section 4.2.2.

(217) The average import prices from the two countries concerned remained stable between 2017 and 2018 but then fell by 14 % in two years’ time. Throughout the whole period considered, the average import prices from both countries concerned (together or separately) were constantly lower than the prices of Union producers (see Table 7), and the difference between average EU sales prices of the Union industry and average import prices from the countries concerned almost doubled over the period considered.

(219) The price comparison was made on a type-by-type basis for transactions at the same level of trade, duly adjusted where necessary, and after deduction of rebates and discounts. The result of the comparison was expressed as a percentage of the sampled Union producers’ theoretical turnover during the investigation period.