16.3.2022
EN
Official Journal of the European Union
L 88/113
(649) Moreover, acknowledgement and adoption of conduct by a State might be express or it might be inferred from the conduct of the State in question (such as cases where the State is at least aware of and consented to the conduct in question).
In any event, the act of acknowledgment and adoption, whether it takes the form of words or conduct, must be clear and unequivocal.
Therefore, Article 11 of the ILC Articles requires an in concreto examination of the behaviour of the exporting country indicating that it acknowledged and adopted as its own the conduct of a foreign government.
(650) In this respect, rather than providing the subsidies directly, the Commission will examine whether the conduct of the foreign government (i.e. the GOC, when granting preferential loans) should be attributed to the exporting country (i. e. the GOID) as providing those subsidies indirectly via the foreign government, as agreed by both governments.
A demonstrable/explicit link must be established between the GOID and the actions taken by the GOC in order to provide the agreed preferential support to the exporting producers in Indonesia.
In that case, the GOID would be accountable for having actively sought, acknowledged and adopted as its own such subsidies for the benefit of the products produced in Indonesia.
(651) The Commission was thus entitled to verify whether the resources provided to the IRNC Group could be qualified as countervailable subsidies granted by the GOID within the meaning of Articles 2, 3 and 4 of the basic Regulation.
4.5.8.1.
F i n a n c i a l c o n t r i b u t i o n o f a g o v e r n m e n t o r a p u b l i c b o d y
(652) According to Article 3(1)(a) of the basic Regulation, a subsidy exists if there is a financial contribution by a government in the country of origin or export.
Similarly, Article 1.1(a)(1) of the SCM Agreement states that a subsidy shall be deemed to exist ‘if there is a financial contribution by a government’.
(653) The GOID has provided IRNC Group with nickel ore, land, and a number of additional subsidies.
These subsidies are thus operated and granted directly by the GOID.
(654) However, ever since the start of the bilateral cooperation with the Joint Declaration between Indonesia and China in 2005 and the Memorandum of Understanding on Infrastructure and natural Resources Cooperation as per recitals (563) et seq., the GOID has proactively induced the GOC to provide financial support to companies in Indonesia by specifically contributing to the creation and development of the stainless steel industry in Indonesia through the Morowali Park.
This is clearly stated in the 2010 Indonesia-China Plan of Action, namely in the chapter on ‘Investment Cooperation’ (see recital (563)).
The cooperation was further strengthened with three documents signed between GOID and GOC in 2011 (see recitals (548) et seq.).
In the Agreement of 29 April 2011 (recital (566)), the governments ‘agreed to encourage their respective financial and insurance institutions to give priority to financing and insurance support for those projects’, including in the steel industry and industrial parks (such as Morowali).
The GOID, via its Investment Coordinating Board (BKPM) expressly asked China to invest in nickel processing in Southeast Sulawesi, i.e. where the Morowali Park is located (see recital (603)).
(655) A key year in the stepping up of the cooperation was 2013.
The GOID and the GOC signed the Indonesia-China Five-Year Development Program for Economic and Trade Cooperation, which identified key cooperation areas including the metallurgical industry, nickel projects and industrial parks, and encouraged Chinese enterprises and financial institutions to participate in the development of economic corridors and specific priority projects (see recitals (604) and (609)).
The cooperation was then sealed at the highest political level with the visit of the President of China to the President of Indonesia in October 2013 mentioned.