ÇHC menşeli belirli grafit elektrot sistemlerinin ithalatına uygulanan kesin anti-damping vergisinin, ÇHC menşeli blok veya silindirlerdeki yapay grafit ithalatına genişletilmesi (AB Mevzuatı)

(1)

On 8 April 2022, by Implementing Regulation (EU) 2022/558 (2), the European Commission imposed a definitive anti-dumping duty on imports of certain graphite electrode systems (‘GES’) originating in the People’s Republic of China (‘PRC’) following an anti-dumping investigation (‘the original anti-dumping investigation’). The measures took the form of an ad valorem duty ranging between 23,0 % and 74,9 % (‘the original measures’).

(2)

On 4 September 2024, the Commission received a request pursuant to Articles 13(3) and 14(5) of the basic AD Regulation to investigate the possible circumvention of the anti-dumping measures imposed on imports of GES originating in the PRC and to make imports of artificial graphite in blocks or cylinders originating in the PRC subject to registration. The request was lodged by the European Carbon and Graphite Association (‘the ECGA’) (‘the applicant’).

(3)

The request contained sufficient evidence of a change in the pattern of trade involving exports from the PRC to the Union that started following the imposition of the original measures. The request provided evidence that exports of GES from the PRC were replaced, to a certain extent, by exports of artificial graphite. This change appeared to stem from a practice, namely the assembly or completion operations of Chinese parts in the Union and subsequent sale of the completed like products in the Union market for which there was insufficient due cause or economic justification other than the imposition of the duty. The evidence showed that these operations substantially increased since, or just prior to, the initiation of the anti-dumping investigation that led to the imposition of the original measures. The request also contained sufficient evidence showing that the parts from the PRC constituted above 60 % of the total value of the parts of the finished product and the value added to the parts brought in during the completion operation was lower than 25 % of the manufacturing cost.

(4)

Furthermore, the evidence showed that there was dumping and that the remedial effects of the original anti-dumping measures were being undermined both in terms of quantity and prices.

(5)

The product concerned by the possible circumvention is graphite electrodes of a kind used for electric furnaces, with an apparent density of 1,5 g/cm3 or more and an electrical resistance of 7,0 μ.Ω.m or less, whether or not equipped with nipples, with a nominal diameter of more than 350 mm, classified on the date of entry into force of Implementing Regulation (EU) 2022/558 under CN code ex 8545 11 00 (TARIC codes 8545 11 00 10 and 8545 11 00 15) and originating in the People’s Republic of China (‘the product concerned’ or ‘GES’). This is the product to which the measures that are currently in force apply.

(6)

The product under investigation for possible circumvention is artificial graphite in blocks or cylinders with an apparent density of 1,5 g/cm3 or more and an electrical resistance of 7,0 μ.Ω.m or less, with a nominal diameter of more than 350 mm, currently falling under CN codes ex 3801 10 00 and ex 3801 90 00 (TARIC code(s) 3801 10 00 15 and 3801 90 00 80) and originating in the People’s Republic of China (‘the product under investigation’ or ‘artificial graphite’).

(7)

The investigation showed that GES produced in the Union from Chinese artificial graphite have the same basic physical and chemical characteristics and the same uses as the GES originating in the People’s Republic of China. Therefore, they are considered to be like products within the meaning of Articles 1(4) and 13(1) of the basic AD Regulation.

(8)

Having determined, after informing the Member States, that sufficient evidence existed for the initiation of an investigation pursuant to Article 13(3) of the basic AD Regulation, the Commission initiated an investigation by Commission Implementing Regulation (EU) 2024/2686 on 18 October 2024 (3) (‘the initiating Regulation’) and made imports of artificial graphite subject to registration in accordance with Article 14(5) of the basic AD Regulation.

(9)

The investigation period covered the period from 1 January 2021 to 30 June 2024 (‘the investigation period’). Data was collected for the investigation period to investigate, inter alia, the alleged change in the pattern of trade following the imposition of the original measures, and the existence of a practice, process or work for which there was insufficient due cause or economic justification other than the imposition of the duty. More detailed data was collected for the period from 1 July 2023 to 30 June 2024 (‘the reporting period’), in order to examine if imports were undermining the remedial effect of the measures in force in terms of prices and/or quantities and the existence of dumping.

(10)

The Commission officially informed the authorities of China, the known exporting producers in the country, the Union industry and the known importers in the Union of the initiation of the investigation.

(11)

Exemption claims forms for importers in the Union and questionnaires for the producers/exporters in China were made available on DG TRADE’s website.

(12)

Only one importer, namely JAP INDUSTRIES s.r.o. (‘JAP’), submitted an exemption request, which was then verified during a visit at their premises.

(13)

Only one Chinese producer, namely Fangda Carbon New Material Co., Ltd., submitted a questionnaire reply. The Commission used the submitted information in particular to cross check the trade flows from China.

(14)

The Commission services sent a questionnaire to the European Carbon and Graphite Association, requesting information concerning total production, total production capacity, capacity utilisation, total sales, captive sales, captive use, and exports of the Union producers. The applicant, the European Carbon and Graphite Association, submitted a reply to the macro questionnaire.

(15)

Interested parties were given the opportunity to make their views known in writing and to request a hearing within the time limit set in the initiating Regulation. All parties were informed that the non-submission of all relevant information or the submission of incomplete, false or misleading information might lead to the application of Article 18 of the basic AD Regulation and to findings being based on the facts available.

(16)

A hearing was held on 5 November 2024 with JAP.

(17)

In accordance with Article 13(1) of the basic AD Regulation, the following elements should be analysed successively in order to assess possible circumvention:

(18)

Since the evidence provided by the applicant in the request pointed to assembly or completion operations in the Union, the Commission specifically analysed whether the criteria set out in Article 13(2) of the basic AD Regulation were met, in particular:

(19)

As noted in recital 12, only one importer of artificial graphite in the Union provided an exemption request and cooperated throughout the investigation. This company’s imports accounted for 4,8 % (4) of the total imports into the Union of artificial graphite from the PRC during the reporting period, which constitutes a low level of cooperation. Due to the low level of cooperation, findings were based on facts available in accordance with Article 18 of the basic AD regulation.

(20)

Table 1 below shows the development of imports of GES from the PRC into the Union in the investigation period.

Table 1

Imports of GES into the Union in the investigation period  (5) (tonnes)

(21)

Table 1 shows that the volume of imports of GES from the PRC decreased from 25 199 tonnes in 2021 to 16 541 tonnes in the reporting period. The volume of imports decreased from 2021 to 2023 by 37 %, followed by an increase from 2023 to the reporting period of 3 %. Accordingly, in the investigation period the volume of imports of GES from the PRC decreased by 34 %. This decrease coincided in time with the imposition of the original measures in April 2022. The share of imports from the PRC also decreased when compared to either total imports (from 63 % to 59 % between 2021 and the reporting period) or to imports from other third countries (from 167 % to 142 %).

(22)

Table 2 shows the development of imports of artificial graphite into the Union from the PRC during the investigation period.

Table 2

Imports of artificial graphite into the Union in the investigation period  (6) (tonnes)

(23)

The primary input for the production of GES is artificial graphite. Table 2 shows that the imports of artificial graphite from the PRC into the Union increased from 80 039 tonnes in 2021 to 118 884 tonnes in the reporting period. From 2021 to 2022, imports rose by 43 %, reaching 114 625 tonnes. This upward trend continued into 2023, with imports peaking at 132 978 tonnes. From 2023 to the reporting period, import volumes decreased to 118 884 tonnes. Overall, import volumes of artificial graphite from the PRC increased by 49 % in the investigation period.

(24)

The CN codes 3801 10 00 and 3801 90 00 , where artificial graphite is classified, include also other products. In particular, they include materials used in the production of batteries.

(25)

There are differences between artificial graphite forms used to produce graphite electrodes and those used for other applications, in particular the production of batteries. The texture and form of artificial graphite used to produce graphite electrodes are hard blocks or cylinders, as opposed to powder or paste forms used for other applications. Moreover, the size of an artificial graphite block roughly corresponds to the size of a graphite electrode. As described in Section 1.3 above, It follows from the definition of the product under investigation, as set out in Section 1.3 above, that the investigation is limited to artificial graphite that is used to produce graphite electrodes.

(26)

The applicant reported that the applicable 8-digit and 10-digit Combined Nomenclature (CN) codes of imports into Poland and Hungary ostensibly also cover certain materials used in the production of batteries. In view of the above, the Commission analysed the import data excluding imports into Poland and Hungary, the Member States most responsible for imports of products under the same CN code destined for battery production in recent years.

Table 3

Imports of artificial graphite into the Union excluding Poland & Hungary in the investigation period  (7) (tonnes)

(27)

Table 3 shows that the volume of imports of artificial graphite from the PRC into the Union, excluding Poland and Hungary, increased from 27 862 tonnes in 2021 to 40 250 tonnes in the reporting period. Imports increased by 78 % from 2021 to 2022, followed by a decrease to 43 723 tonnes in 2023, then further decreased to 40 250 tonnes in the reporting period. Overall, imports increased by 44 % in the investigation period. This increase coincided with the imposition of the original measures in April 2022.

(28)

The decrease of exports of GES from the PRC to the Union as shown in Table 1, together with the significant increase of exports of artificial graphite from the PRC to the Union in the investigation period, as shown in Table 2 and Table 3, which is indicative of substitution (see recital 33), constituted a change in the pattern of trade within the meaning of Article 13(1) of the basic AD Regulation.

(29)

Article 13(1) of the basic AD Regulation requires that the change in the pattern of trade stems from a practice, process or work for which there is insufficient due cause or economic justification other than the imposition of the duty. The practice, process or work includes, amongst others, the assembly of parts or completion operations in accordance with Article 13(2) of the basic AD Regulation.

(30)

Artificial graphite is considered as a semi-finished product, which is further processed into finished goods such as GES. This further processing of artificial graphite into GES falls under the concept of a completion operation in the sense of Article 13(2) of the basic AD Regulation.

(31)

The investigation revealed that artificial graphite was imported from the PRC into the Union, to be further processed into GES. The investigation also established that the artificial graphite from the PRC constituted above 60 % of the total value of parts of GES (95 % to 100 %) and that the value added in the further processing operation was significantly lower than 25 % of the manufacturing cost (8) (1 % to 10 %).

(32)

The investigation did not reveal any economic justification for the change in the pattern of trade described in Section 2.2.2 other than the initiation of the original anti-dumping investigation and the subsequent imposition of the original measures.

(33)

Therefore, the requirements of Articles 13(1) and 13(2) of the basic AD Regulation was met.

(34)

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

(35)

Regarding quantities, imports of artificial graphite, from the PRC into the Union, used to be further processed into GES, represented around 28 % of Union consumption during the reporting period. The consumption of GES in the Union was estimated at 142 817 tonnes (9). The volume of imports was thus considered to be significant.

(36)

Regarding prices, the Commission compared the average non-injurious price of GES, as established in the original anti-dumping investigation adjusted for inflation based on the European Central Bank Harmonised Index of Consumer Prices (10), with the weighted average export CIF prices of artificial graphite determined on the basis of Eurostat statistics, duly adjusted for transformation and profit. This price comparison showed that the imports from China undersold the Union prices by more than 170 %.

(37)

The Commission therefore concluded that the remedial effect of the measures in force was being undermined in terms of both quantities and prices.

(38)

In accordance with Article 13(2) of the basic AD Regulation, the Commission also examined whether there was evidence of dumping in relation to the normal values previously established for the like product.

(39)

To this end, the Commission compared the average export prices of GES during the reporting period, based on Eurostat import statistics for artificial graphite, excluding imports into Poland and Hungary, and adjusted for the cost of further processing into GES, to the normal value established for China in the original anti-dumping investigation (11), adjusted for inflation. Following the methodology established in the request, the Commission used the inflation rate increase in Mexico (12), the representative country in the original investigation, as a reference.

(40)

The comparison of the export prices and the normal values previously determined in the original anti-dumping investigation for the like product, established as described in recital 39, after adjustments, showed evidence of dumping during the reporting period, as defined by Article 13(1) of the basic AD Regulation.

(41)

Based on the above, the Commission concluded that the definitive anti-dumping duty imposed on imports of GES originating in the PRC was circumvented by imports of artificial graphite.

(42)

Therefore, in accordance with Article 13(1) of the basic AD Regulation, the anti-dumping measures in force should be extended to imports from the PRC into the Union of the product under investigation.

(43)

Pursuant to Article 13(1), second paragraph of the basic AD Regulation, the measure to be extended should be the one established in Article 1(2) of Implementing Regulation (EU) 2022/558 for ‘all other companies’, which is a definitive anti-dumping duty of 74,9 % applicable to the net, free-at-Union-frontier price, before customs duty.

(44)

Pursuant to Article 13(3) of the basic AD Regulation, which provides that any extended measure should apply to imports that entered the Union under registration imposed by the initiating Regulation, duties are to be collected on those registered imports of the product under investigation in accordance with the findings made in this investigation.

(45)

One importer of artificial graphite requested an exemption of the extension of the measures.

(46)

In accordance with Article 13(1) and Article 13(2) of the basic AD Regulation, the Commission analysed if the applicant engaged in the circumvention practice established in this case.

(47)

Specifically, the comparison of normal values established as explained in recital 39 and prices of JAP Industries in the Union revealed no evidence of dumping during the reporting period. Furthermore, the investigation revealed that the sales of GES by JAP Industries within the Union decreased substantially during the investigation period. Moreover, JAP Industries’ prices were significantly higher compared to Chinese prices, even after accounting for the anti-dumping duties imposed on Chinese GES. Consequently, JAP was found not to have participated in the circumvention practice established in this case.

(48)

In view of the above, the Commission concluded that the request for exemption, pursuant to Article 13(4) of the basic AD Regulation, should be granted to JAP.

(49)

On 25 April 2025, the Commission disclosed to all interested parties the essential facts and considerations leading to the above conclusions and invited them to comment.

(50)

Following the disclosure, a Chinese exporting producer, Fangda Carbon New Material Co. Ltd, claimed that the extended duties should not be set at the residual rate. They argued that the rates should instead reflect those established during the original investigation, and that the imports of the companies which cooperated in the initial investigation and received individual or weighted average rates should be subject of the same respective level of duties, and not the residual duty applicable to other companies.

(51)

The Commission disagreed. Article 13(1), second paragraph of the basic AD Regulation allows the Commission to extend the duties to a level not exceeding the residual anti-dumping duty imposed in accordance with Article 9(5). Interested parties in this case presented no valid arguments why, in the exercise of its discretion in this regard, the Commission should set the applicable duty at a level lower than the residual duty. Hence, the Commission acted in accordance with the applicable legal framework. The claim was therefore rejected.

(52)

Similarly, Fangda Carbon claimed that the Commission did not adequately substantiate its determination of the value added. It also claimed that the Commission failed to clarify whether products not falling in the scope of the product under investigation, but falling under similar CN codes, were included in the price comparison, and whether import data from China to Hungary and Poland were excluded from the assessment.

(53)

Regarding the determination of the normal value, the Commission established that the value added to the parts brought in through further processing was significantly below 25 %. This conclusion, as explained in Section 2.2.3, was based on data submitted in the complaint and confirmed by verified data submitted by the company requesting the exemption. The claim was therefore rejected.

(54)

Regarding the products included in the price comparison and the consideration of imports into Hungary and Poland, the Commission explained in Section 2.2.2 the methodology to isolate the product under investigation from other products that should be excluded based on the available information. The Commission specifically highlighted the distinction between forms of artificial graphite used in the production of graphite electrodes and those intended for other applications. Recitals 26 to 28 and recital 39 also explained that imports of artificial graphite into these two countries were excluded from the analysis.

(55)

Following the disclosure, the applicant disagreed with the Commission’s conclusion that there was no evidence of dumping in JAP’s selling prices during the reporting period and claimed that the Commission failed to specify the legal basis under which the exemption was granted.

(56)

The Commission noted that it had thoroughly assessed the information requested from and submitted by JAP Industries. The comparison of normal values established, as explained in recital 39, and prices of JAP Industries in the Union revealed no evidence of dumping during the reporting period. Hence, based on company-specific, verified data, the Commission concluded that there was no evidence of dumping. As the existence of dumping is a necessary condition for establishing circumvention under Article 13(2) of the basic AD Regulation, the Commission determined that no circumvention had occurred and therefore granted the requested exemption. In contrast, the applicant’s allegations of dumping attributed to JAP were found to lack a factual basis. The claim was therefore rejected.

(57)

The applicant also requested that, should an exemption be granted to JAP Industries, appropriate safeguards should be implemented to mitigate potential risks arising from changes in the market behaviour of JAP Industries in the Union market. These risks include, among others, becoming a channel for artificial graphite imports intended for resale to other processing companies in the Union, or engagement in dumping practices.

(58)

Regarding the risk that the company becomes a channel for circumvention, the Commission considered that the exemption to the company was given based on the fact that its own assembly or completion operations in the Union did not constitute circumvention. Consequently, the exemption conditions should ensure that the artificial graphite imported by the exempted party are actually used in the exempted party’s assembly operations, and not resold to other parties in the Union. Indeed, the latter possibility would render the measures ineffective. Therefore, the Commission considered it appropriate that the artificial graphite imported by the exempted company should only be used in the exempted party’s assembly operations, re-exported, or destroyed, and that a breach of these obligations, such as reselling those imports to other parties in the Union, should allow for a revocation of the exemption.

(59)

Regarding a potential engagement in dumping or, more broadly, circumvention practices, this can be addressed through a review of the measures, provided there is sufficient evidence to initiate such a review.

(60)

The measures provided for in this Regulation are in accordance with the opinion of the Committee established by Article 15(1) of Regulation (EU) 2016/1036,