WT/DS616/1, G/L/1479  
G/SCM/D135/1, G/ADP/D142/1  
 
26 January 2023  
(23-0634) Page: 1/5 
  Original: English  
 
EUROPEAN UNION – ANTI -DUMPING AND COUNTERVAILING DUTIES  
ON STAINLESS STEEL PRODUCTS FROM INDONESIA  
REQUEST FOR CONSULTATIONS BY INDONESIA  
The following communication, dated 24 January 2023 , from the delegation of Indonesia  to the 
delegation of the European Union , is circulated to the Dispute Settlement Body in accordance with 
Article 4.4 of the DSU.  
 
_______________  
 
 
My authorities  have instructed  me to request  consultations  with the European Union  ("EU")  pursuant  
to Articles  1, 4, and 26 of the Understanding  on Rules  and Procedures  Governing  the Settlement  of 
Disputes ("DSU"), Article 30 of the Agreement on Subsidies and Countervailing Measures 
("SCM  Agreement"), Article  17 of the Agreement  on Implementation  of Article VI of the General  
Agreement  on Tariffs  and Trade 1994 ("Anti -Dumping Agreement") and Article XXIII of the General 
Agreement on Tariffs and Trade  1994 ("GATT  1994"),  concerning  the imposition of  countervailing  
and anti-dumping  duties on Stainless Steel Cold -Rolled Flat Products ("SSCRFP") from Indonesia.  
 
The measures that Indonesia would like to address in these consultations are the definitive 
countervailing and anti -dumping duties on SSCRFP from Indonesia as well as the underlying 
investigation that led to the imposition of these measures (hereafter "countervailing measures" and 
"anti-dumping measures", respectively), which include, amongst others, the actions taken or omitted 
by the European Commission ("Commission") during the course of – or in relation to – the 
investigation.  This request also covers any future action or measures the EU may take in connection 
with these measures . 
 
The countervailing and anti -dumping measures include, but are not limited to, and are evidenced by 
the following i nstruments/documents:  
 
▪ Commission Implementing Regulation (EU) 2022/433 of 15 March 2022 imposing definitive 
countervailing duties on imports of stainless steel cold -rolled flat products originating in 
India and Indonesia and amending Implementing Regulation (EU) 2021/2012 imposing a 
definitive anti -dumping duty and definitively collecting the provisional duty imposed on 
imports of stainless steel cold -rolled flat products originating in India and Indonesia 
(hereafter "Countervailing Re gulation");1 and  
 
▪ Commission Implementing Regulation (EU) 2021/2012 of 17 November 2021 imposing a 
definitive anti -dumping duty and definitively collecting the provisional duty imposed on 
imports of stainless steel cold -rolled flat products originating  in India and Indonesia, 
published in the Official Journal of the European Union (hereafter "Definitive Anti -Dumping 
Regulation")2 and Commission Implementing Regulation (EU) 2021/854 of 27 May 2021 
imposing a provisional anti -dumping duty on imports of s tainless steel cold -rolled flat 
 
1 Published  in the Official Journal of the European Union, L -series number 88, page 24, dated 
16 March  2022: 
https://eur -lex.europa.eu/legal -content/EN/TXT/PDF/?uri=CELEX:32022R0433&from=EN . 
2 Published in the Official Journal of the European Union, L -series number 410,  page 153, dated 
18 November 2021 : https://eur -lex.europa.eu/legal -content/EN/TXT/PDF/?uri=CELEX:32021R2012&from=EN . WT/DS616/1 • G/L/1479 • G/SCM/D135/1 • G/ADP/D142/1  
 
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  products originating in India and Indonesia (hereafter "Provisional Anti -Dumping 
Regulation").3 
 
With respect to the countervailing measures, Indonesia is  concerned  that the following elements of 
the Countervailing Regulati on, and of the investigation leading to the imposition of these measures, 
appear to be inconsistent  with the SCM Agreement and the GATT 1994:  
 
1. In connection  with the provision of preferential financing and other support 
by Chinese grantors to Indonesian  SSCRFP producers:  
 
a. The EU's attribution of financial contributions by Chinese grantors to the 
Government of Indonesia, and the EU's decision to consider these attributed 
financial contributions as subsidies within the meaning of Article 1.1(a)(1) of th e 
SCM Agreement;  
 
b. The EU's determination that the Government of Indonesia was the granting 
authority within the meaning of Articles 2.1 and 2.2 of the SCM Agreement with 
respect to financial contributions provided by Chinese grantors;  
 
c. The EU's deter mination that alleged subsidies, provided by Chinese grantors to 
certain enterprises which were not within their jurisdiction, were specific in 
accordance with Articles 1.2, 2.1, 2.2, and 2.4 of the SCM Agreement;  
 
d. The EU's decision to countervail alleg ed subsidies provided by Chinese grantors 
without demonstrating specificity in accordance with Articles 1.2, 2.1, and 2.2 
of the SCM Agreement on the basis of positive evidence as required by Article  2.4 
of the SCM Agreement;  
 
e. The EU's determination of a benefit and the EU's calculations of such benefit 
regarding, amongst others, the use of benchmarks that do not reflect prevailing 
market conditions in the country of provision and the absence of proper 
"pass  through" determinations, as required by Articles 1.1(b), 10, 14, and 32.1 
of the SCM Agreement;  
 
2. In connection with the provision of nickel ore:  
 
a. The EU's determination that certain Indonesian regulatory measures 
constituted or led to a financial contribution within the meaning of 
Article  1.1(a)(1) of the SCM Agreement;  
 
b. The EU's determination that nickel ore mining companies constituted public 
bodies within the meaning of Article 1.1(a)(1) of the SCM Agreement;  
 
c. The EU's determination that nickel ore mining companies acted as  private 
bodies  entrusted or directed by the Government of Indonesia within the 
meaning of Article 1.1(a)(1)(iv) of the SCM Agreement;  
 
d. The EU's determination that the provision of nickel ore conferred a benefit to 
SSCRFP producers and the calculation o f the amount of that alleged benefit by 
relying on an external benchmark that did not reflect the prevailing market 
conditions for the goods in question in the country of provision, in contradiction 
with Articles 1.1, 10, 14, and 32.1 of the SCM Agreement;  
 
e. The EU's determination that the provision of nickel ore was specific in 
accordance with Articles 1.2, 2.1, and 2.2 of the SCM Agreement and shall be 
clearly substantiated on the basis of positive evidence as required by Article  2.4 
of the SCM Agreemen t; 
 
 
3 Published in the Official Journal of the  European Union, L -series number 188, page 61, dated 
28 May 2021:  
https://eur -lex.europa.eu/legal -content/EN/TXT/PDF/?uri=CELEX:32021R0854&from=EN . WT/DS616/1 • G/L/1479 • G/SCM/D135/1 • G/ADP/D142/1  
 
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  f. The EU's decision to seek unilateral redress through countervailing measures 
for export restrictions on nickel ore for which the EU alleges, in WT/DS592, a 
violation of Article XI:1 of the GATT 1994, in contradiction with Article 23.1 of 
the DSU;  
 
3. In connection with the provision of land:  
 
a. The EU's determination that the provision of land constituted a financial 
contribution by a government within the meaning of Article 1.1(a)(1) of the 
SCM Agreement;  
 
b. The EU's reliance on a benchmark, which  did not reflect prevailing market 
conditions for the goods in question in the country of provision, as the basis for 
establishing the existence and the amount of the benefit, in accordance with 
Articles 1.1, 10, 14, and 32.1 of the SCM Agreement;  
 
c. The EU's determination that the provision of land by the Government of 
Indonesia was specific in accordance with Articles 1.2, 2.1, and 2.2 of the 
SCM Agreement and shall be clearly substantiated on the basis of positive 
evidence as required by Article 2.4 of  the SCM Agreement;  
 
4. In connection with government revenue that is otherwise due which is 
foregone or not collected:  
 
a. The EU's determination that the income tax holiday and the income tax 
allowance facility were specific within the meaning of Articles 1.2, 2.1, 2.2, and 
2.4 of the SCM Agreement;  
 
b. The EU's determination that the import duty exemption on raw materials used 
to manufacture exported goods constituted an export subsidy within the 
meaning of Article 3.1(a) and/or constituted a fina ncial contribution in the form 
of revenue foregone by the Government of Indonesia within the meaning of 
Article 1.1(a)(1)(ii) of the SCM Agreement in disregard of footnote 1 to the 
SCM Agreement;  
 
c. The EU's determination that the import duty exemption f or machinery and 
spare parts imported from China constituted an export subsidy within the 
meaning of Article 3.1(a) and/or constituted a financial contribution in the form 
of revenue foregone by the Government of Indonesia within the meaning of 
Article 1.1 (a)(1)(ii) of the SCM Agreement;  
 
d. The EU's decision to countervail the alleged revenue foregone for imports of 
bonded zone spare parts from China without appropriately adjusting the 
anti-dumping duty in accordance with Article VI:5 of the GATT 1994, Art icle 9.2 
of the Anti -Dumping Agreement and Article 19.3 of the SCM Agreement ;  
 
e. The EU's omission to determine that the import duty exemption for machinery, 
spare parts and raw materials were specific, as required by Articles 1.2, 2.1, 
2.2, 2.3 of the S CM Agreement, and the EU's omission to clearly substantiate 
these determinations of specificity on the basis of positive evidence, as 
required by Article 2.4 of the SCM Agreement;  
 
f. The EU's omission to correctly determine the existence and the amount o f the 
alleged benefit of the import duty exemption for machinery, spare parts and 
raw materials , in accordance with Articles 1.1, 10, 14, and 32.1 of the 
SCM Agreement;  
 
5. In connection with actions taken or omitted during the course of – or in 
relation t o – the investigation, and other cross -cutting issues:  
 
a. The EU's decision to require the interested Member (Indonesia) to conduct a 
part of the investigation on behalf of the European Commission, in WT/DS616/1 • G/L/1479 • G/SCM/D135/1 • G/ADP/D142/1  
 
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  contradiction with Articles 10 and 12 of the SCM Agree ment.  The EU's action 
also nullified and/or impaired a benefit accruing to Indonesia and/or impeded 
the attainment of an objective of the SCM Agreement;  
 
b. The EU's decision to resort to facts available against nickel ore mining 
companies, in contradiction with Article 12.7 of the SCM Agreement, since: 
(i) these companies were not "interested parties" in the sense of Article 12.9 
of the SCM Agreement; (ii) if they were, they were not directly informed of the 
information required from them, in accordance with Article 12.1 of the 
SCM Agreement; and (iii) if they were, the Commission did not demonstrate 
that these companies had failed or refused to cooperate with the Commission;  
 
c. The EU's decision to resort to facts available against certain S SCRFP producers, 
and against the Government of Indonesia, on the basis of an incorrect 
determination that these producers and the Government failed or refused to 
cooperate with the Commission, in contradiction with Article 12.7 of the 
SCM Agreement;  
 
d. The EU's use of facts available in a way that did not reasonably replace the 
allegedly missing information (for example, with respect to the benchmark for 
purchases of machinery), in contradiction with Article 12.7 of the 
SCM Agreement;  
 
e. The timing of t he EU's release of essential facts under consideration in the 
definitive disclosure documents, which did not provide interested parties 
sufficient time to defend their interests and did not allow the parties to present 
in writing all evidence that they con sidered relevant, in contradiction with 
Articles 12.1 and 12.8 of the SCM Agreement;  
 
f. The EU's omission to inform Indonesia and other interested parties of certain 
essential facts under consideration and to provide sufficient details in the 
Countervail ing Regulation, for example, with respect to the benchmark for 
purchases of machinery, as required by Articles 12.8 and 22.3 of the 
SCM Agreement; and  
 
g. In case the EU asserts, in connection with points 1 through 4 above, that the 
Commission did conduct "pass through" and specificity analyses, the EU's 
omission to inform Indonesia and other interested parties of the essential facts 
under consideration, as required by Article 12.8 of the SCM Agreement; to 
calculate the benefit in a transparent and adequate ly explained manner, as 
required by Article 14 of the SCM Agreement; and to explain in sufficient detail 
in the Countervailing Regulation, the Commission's conclusions on all issues of 
fact and law that were considered material by the Commission, as requir ed by 
Article 22.3 of the SCM Agreement.  
 
Accordingly, the EU's imposition of countervailing measures on the imports of SSCRFP from 
Indonesia also appears inconsistent with Articles II:1(b), VI:3, VI:4, and VI:5 of the GATT 1994 
and Articles 10, 19, and 32 .1 of the SCM Agreement.  
 
With respect to the anti -dumping measures, Indonesia is  concerned  that the following elements of 
the Definitive and Provisional Anti -Dumping Regulation and of the investigation leading to the 
imposition of these measures appear to  be inconsistent  with the Anti -Dumping Agreement and 
GATT  1994:  
 
6. In connection with the obligations to make a fair comparison between the 
export price and the normal value and to make due allowance for 
differences affecting price comparability : 
 
a. The EU's omission to make due allowance for differences in price comparability 
as required by Article 2.4  of the Anti -Dumping Agreement .  Amongst others,  
 WT/DS616/1 • G/L/1479 • G/SCM/D135/1 • G/ADP/D142/1  
 
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  i. the EU deducted certain handling and loading costs, freight and insurance 
expenses and port costs, demurrage and dispatch costs from the export 
price, while it did not deduct similar expenses such as transport, handling, 
and loading costs from the domestic sales price and the normal value; and  
 
ii. the EU deducted SG&A expenses and a notional pro fit from the export price 
for export sales through related traders while not deducting such SG&A 
expenses and a notional profit from the domestic sales price and the normal 
value when domestic sales were made through related traders;  
 
b. The EU's omission to make a fair comparison between the export price and the 
normal value, and to make the comparison at the same level of trade as required 
by Article 2.4  of the Anti -Dumping Agreement.  Amongst others, the EU 
compared export  sales at the ex-works  level wit h a normal value at the 
ex-warehouse  level;  
 
c. The EU's omission to indicate what information was necessary to ensure a fair 
comparison and the imposition of an unreasonable burden of proof , thereby not 
acting in an objective and unbiased manner  as requir ed by Articles 2.4, 6.1, 
and 6.6 of the Anti -Dumping Agreement and the standard expected 
from investigating authorities as expressed in Article 17.6(i) of the 
Anti-Dumping  Agreement ; and 
 
d. The EU's omission to appropriately adjust the anti -dumping duty to take account 
of the countervailing duty for imports of bonded zone spare parts from China, 
as required by Article VI:5 of the GATT 1994, Article 9.2 of the Anti -Dumping 
Agreement, and Article 19.3 of the SCM Agreement.  
 
Accordingly, the EU's imposition of anti -dumping measures on the imports of SSCRFP from 
Indonesia  also appears inconsistent with Articles 1, 2.1, 9.1, 9.3, 11.1, and 18.1 of the 
Anti-Dumping  Agreement, and Articles VI:1 and V I:2 of the GATT 1994 . 
 
As a result of these above inconsistencies, the EU's measures also appear to nullify or impair the 
benefits accruing to Indonesia, directly or indirectly, under the covered agreements.  
 
Indonesia reserves the right to address additi onal measures and claims under other provisions of 
the covered agreements regarding the above matters during the consultations, and in any request 
for the establishment of a Panel, in light of the information the European Union may provide.  
 
Indonesia  looks forward  to receiving  the EU's reply to this request  and expresses its readiness to 
consider a mutually  convenient format, date, and place for the consultations.  
 
 
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