TPM Newsletter: November 2025 - From The WTO Panel

European Union – Countervailing and Anti-Dumping Duties on Stainless Steel Cold-Rolled Flat Products from Indonesia

DS 616 – Panel report

On 2nd October 2025, the WTO Dispute Settlement Body through the Panel, issued its findings in the challenge brought by Indonesia against the anti-subsidy duty and anti-dumping duty imposed by the European Commission on imports of Stainless-Steel Cold-Rolled Flat Products.

Measures under dispute

In November 2021 and March 2022, the European Commission imposed antidumping and anti-subsidy duties, respectively, on imports of Stainless-Steel Cold-Rolled Flat Products from Indonesia and India. Pursuant to the investigation, the Commission recommended imposition of duties on imports from Indonesia for three responding exporters and other non-responding exporters. In particular, anti-dumping and anti-subsidy duties at the rate of 9.3% and 21.4% respectively, were imposed on PT Indonesia Ruipu Nickel and Chrome Alloy (IRNC) and its group companies.

Issues under dispute

In January 2023, Indonesia requested consultations with the European Commission concerning the anti-subsidy and anti-dumping duties imposed, failing which Indonesia requested establishment of a Panel in April 2023. Indonesia challenged various substantive and procedural aspects of the antisubsidy and anti-dumping investigations and the consequent duties. However, following major aspects regarding the anti-subsidy investigation were challenged-

a. Preferential financing and other support by Chinese Grantors to IRNC group

The Commission found that the IRNC group received preferential financing, support and loans through its Chinese parent companies located in China. The Commission determined that since the Government of Indonesia induced the Chinese grantors to provide preferential financing to IRNC group, the Government had in a way adopted and acknowledged the financing as its own. The Commission concluded that Article 1.1(a)(1) of the Agreement on Subsidies and Countervailing Duty Measures (ASCM) when interpreted in light of Article 11 of the International Law Commission's Articles on the Responsibility of States for Internationally Wrongful Acts clarify that an act or conduct can be attributed to a State to the extent such act is acknowledged and / or adopted by the State. As a result, the Commission determined that preferential lending by the Chinese grantor was attributable to the Government of Indonesia.

Indonesia challenged the determination of the Commission on the grounds that Article 1.1(a)(1) of the ASCM provides a list of entities, whose actions can be attributed to 'government'. Such entities include government in the narrow sense, public body, entrusted private bodies, directed private bodies and funding mechanisms. Indonesia claimed that such list is exhaustive and that the ASCM does not allow actions of one WTO member to be attributed to another WTO member. Accordingly, Indonesia claimed that the Commission wrongly attributed the actions of the Chinese grantors to the Government of Indonesia.

b. Provision of nickel ore at less than adequate remuneration

The Commission determined that the nickel ore miners in Indonesia were essentially 'public body' and supplied nickel ore to producers of stainless-steel flat products at prices which were lower than internationally prevailing market prices. The Commission based its determination on the fact that the mining companies in Indonesia were majorly owned by the government and were engaged in advancing Indonesia's development goals. While none of the mining companies provided any information regarding ownership, the Commission relied on publicly available information. Further, the Commission noted that many mining companies were designated as 'National Vital Object in the Mineral and Coal Sector' and were required to adhere to various government-prescribed measures regarding provision of nickel ore.

Indonesia asserted that the findings of the Commission were not based on a caseby-case analysis of each entity and were based on generalized sector-wide analysis. Indonesia claimed that the Commission examined the ownership of only 6 out 290 mining companies but concluded that all mining companies in Indonesia were owned by the Government. Further, the assessment that the mining companies were performing the functions of the government and providing nickel ore at less than adequate remuneration was also not based on fact-based logic.

Findings of the Panel

At the outset, the Panel clarified that it would not discuss or give findings regarding the countervailability of 'transnational subsidies' under the ASCM. The Panel stated that none of the parties to the dispute raised any issue as to whether the term 'subsidy' as defined under Article 1 of the ASCM encompasses a financial contribution that may be provided by one WTO Member in the territory of another WTO Member. Thus, the Panel restricted its findings to the issues raised by Indonesia and European Commission.

With regards to the attribution of preferential financing by Chinese grantors to Government of Indonesia, the Panel observed that the Commission's findings were based entirely on the fact that the Government of Indonesia 'induced' the Chinese grantors to provide preferential financing to IRNC group, thereby adopting such financing as its own. However, the Panel noted that governmentto-government inducement does not constitute a financial contribution under Article 1.1 (a)(1) of the ASCM. Further, the Panel noted that the ASCM identifies certain entities which may be considered as 'government' or 'public body'. Such entities essentially share characteristics of the government. However, entities that are 'induced' to carry out one or more of the functions of the government as listed in the subparagraphs of Article 1.1(a)(1) cannot be considered as 'government'.

As regards the argument that nickel ore mining companies in Indonesia constituted 'public body', the Panel noted that the Commission indeed examined the ownership of a very small number of mining companies and thereafter, applied facts available to all other companies. Further, the Panel noted that the Commission determined all Indonesian mining companies were operating within a domestic regulatory framework, and were actually performing governmental functions by pursuing the government's policy objectives. However, the Panel noted that while various evidence and facts examined by the Commission establish that the Government of Indonesia may have controlled the conduct of the mining companies, it does not establish that the Government was involved in the ownership, governance and management of such companies. Thus, such mining companies cannot be considered as 'public body'.

The Panel also noted that the European Commission failed to establish that the Government of Indonesia, through export restrictions and domestic procurement obligations, directed the mining companies to supply nickel ore to stainless steel producers at less than adequate remuneration.

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