COMMISSION IMPLEMENTING REGULATION (EU) 2019/1198

of 12 July 2019

imposing a definitive anti-dumping duty on imports of ceramic tableware and kitchenware originating in the People's Republic of China following an expiry review pursuant to Article 11(2) of Regulation (EU) No 2016/1036

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), and in particular Article 11(2) thereof,

Whereas:

1. PROCEDURE

1.1. Measures in force

(1) In May 2013, the Council, by Council Implementing Regulation (EU) No 412/2013 (2), imposed a definitive anti-dumping duty on imports of ceramic tableware and kitchenware originating in the People's Republic of China (‘China’ or ‘the PRC’). The individual anti-dumping duties currently in force range from 13,1 % to 26,1 %. All non-sampled cooperating exporting producers received a duty of 17,9 % and all other companies are subject to the residual duty of 36,1 % (‘the original measures’). The investigation that led to the imposition of the original measures will hereinafter be referred to as ‘the original investigation’.

1.2. Initiation of an expiry review

(2) Following the publication of a notice of impending expiry of the original measures, (3) the European Federation for Table- and Ornamental ware (‘FEPF’ or ‘the applicant’) representing more than 28 % of the total Union production of ceramic tableware and kitchenware in 2017 requested the initiation of an expiry review. It argued that the expiry of the original measures would be likely to result in continuation of dumping and a continuation or recurrence of injury to the Union industry.

(3) On 15 May 2018 the Commission announced, by a notice published in the Official Journal of the European Union (4) (‘the Notice of Initiation’), the initiation of an expiry review of the original measures applicable pursuant to Article 11(2) of the 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 (5) (‘the basic Regulation’).

1.3. Investigation

1.3.1. Review investigation period and period considered

(4) The investigation of a continuation of dumping covered the period from 1 April 2017 to 31 March 2018 (‘the review investigation period’). The examination of the trends relevant for the assessment of the likelihood of continuation or recurrence of injury covered the period from 1 January 2014 to the end of the review investigation period (‘the period considered’).

1.3.2. Interested parties

(5) In the Notice of Initiation, the Commission invited all interested parties to participate in the investigation. In particular, it advised the following parties of the initiation of the expiry review: the applicant, the known producers in the Union and their relevant associations, the known exporting producers in the PRC, the known unrelated importers in the Union and the authorities of the PRC.

(6) All interested parties were invited to make their views known, submit information and provide supporting evidence within the time limits set out in the Notice of Initiation. Interested parties were also granted the opportunity to request in writing a hearing by the Commission investigation services and/or the Hearing Officer in trade proceedings.

(7) The complainant Union producers, represented by the applicant, requested the Commission to keep their names confidential to avoid a possible risk of retaliation from the Chinese local authorities and/or from private actors in the PRC. They maintained that revealing the complainants' identities could potentially have a severe negative impact on their business activities and relationship with Chinese counterparts with whom they had strong links.

(8) The Commission assessed these requests and the supporting evidence provided. It concluded that there was indeed evidence of a significant risk of retaliation. On this basis, it granted confidential treatment to the names of the complainant producers. (6)

1.3.3. Sampling

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

1.3.3.1. Sampling of Union producers

(10) In the Notice of Initiation, the Commission stated that it had provisionally selected a sample of Union producers in accordance with Article 17(1) of the basic Regulation. Prior to the initiation, 25 Union producers had provided the information requested for the selection of the sample and expressed their willingness to cooperate with the Commission. On that basis, the Commission had provisionally selected a sample of four producers, which were found to be representative of the Union industry. (7) The selection was made based on the producers' production volumes of the like product, size, geographic location in the Union and product segment. The four Union producers covered all major product types and were located in four Member States. Out of these producers, two were small and medium-sized enterprises (SMEs (8)). The provisional sample accounted for over 10 % of the estimated total Union production in 2017.

(11) Following the establishment of the provisional sample, one of the sampled producers informed the Commission it had erroneously labelled itself as an SME while in fact, it was not. In order to maintain a representative sample, the Commission amended its provisional sample to include one additional SME. (9) The resulting final sample included five Union producers, out of which two SMEs, covering all major product types and located in five Member States (10). That sample represented over 10 % of the estimated total production of the Union industry in 2017.

(12) The China Chamber of Commerce for Exports and Imports of Light Industrial Products and Art Crafts (‘CCCLA’) commented on the low percentage of representativeness of the sampled companies (over 10 %) in comparison with the original investigation (over 20 %). The Commission, however, considered that given the fragmented character of the ceramic tableware industry and the need to include both large and small companies producing different product types in different Member States, the sample included the largest representative volume of sales that could reasonably be investigated within the time available.

1.3.3.2. Sampling of importers

(13) To decide whether sampling was necessary and, if so, to select a sample, the Commission asked unrelated importers to provide the information specified in the Notice of Initiation. Fifteen importers made themselves known to the Commission, of which twelve provided the required information. In view of the number of replies, the Commission decided to limit the number of importers it would investigate and selected a sample. In accordance with Article 17(1) of the basic Regulation, the Commission selected two companies corresponding to the largest representative volume of imports and sales of the product under review in the Union, which could reasonably be investigated within the time available. (11) According to the figures reported at sampling stage, the sampled companies accounted for 2 – 5 % of the imports of the product concerned during the review investigation period.

1.3.3.3. Sampling of exporting producers in the PRC

(14) To decide whether sampling is necessary and, if so, to select a sample, the Commission asked all known exporting producers in the PRC to provide the information specified in the Notice of Initiation. In addition, it asked the Mission of the People's Republic of China to the European Union to identify and/or contact other exporting producers, if any, that could be interested in participating in the investigation.

(15) Five-hundred-thirty-four (534) Chinese exporting producers / groups of exporting producers returned the sampling forms and agreed to be included in the sample. These cooperating Chinese exporting producers together represented around 82 % and 76 % of the Chinese sales volumes and values of ceramic tableware and kitchenware to the Union during the review investigation period. After analysing the information supplied by the Chinese exporting producers, the Commission decided to limit its investigation to a reasonable number of exporting producers by using a sample in accordance with Article 17(1) of the basic Regulation. On 29 June 2018 (note for the file No. t18.007505) the Commission selected a sample of three groups of exporting producers based on the largest sales volume to the Union during the review investigation period. According to Eurostat, the three sampled groups covered around 8,8 % of the total Chinese exports to the Union in the review investigation period (12).

(16) The CCCLA commented on the low percentage of representativeness of the sampled companies in comparison with the original investigation (almost 20 %). The Commission, however, considered that given the fragmented character of the ceramic tableware industry, selecting the three largest groups in terms of their declared export sales to the Union was the largest representative volume of exports that could reasonably be investigated within the time available.

(17) On 25 July 2018, one of the sampled groups (13) informed the Commission services of its decision to withdraw from cooperation and not to submit a questionnaire reply. Subsequently, in line with Article 17(4) of the basic Regulation the Commission decided to select a new sample by adding one more group, the fourth largest in terms of Union sales during the review investigation period (14).

1.3.4. Questionnaires and verification visits

(18) The Commission sent questionnaires to the three sampled groups of Chinese exporting producers and to the government of the PRC (‘GOC’), to the five sampled Union producers and the two sampled unrelated importers. Two groups of Chinese exporting producers, four sampled Union producers and two sampled importers provided complete questionnaire replies.

(19) One small Union producer informed the Commission that it would not be able to provide a meaningful reply to the questionnaire and consequently withdrew its cooperation. Due to the late stage in the procedure, it was not possible to replace the sampled company. The withdrawal of the company had an impact on the representativeness of the sample, as it was reduced to three large producers and one SME instead of two SMEs. However, the amended sample still represented over 10 % of the estimated total production of the Union industry in 2017, including all relevant product segments (porcelain, stoneware and earthenware), large companies and SMEs as well as maintaining a representative geographic spread (four Member States (15)).

(20) One group of the sampled Chinese exporting producers provided a severely deficient questionnaire reply with sections on domestic sales and costs left blank, which did not enable the Commission to obtain all information that it deemed necessary for the investigation. Consequently, the Commission informed this group that, as far as this group is concerned, it may base its findings on facts available as provided for in Article 18 of the basic Regulation (16).

(21) The Commission verified all the information it deemed necessary for a determination of the likelihood of a continuation of dumping and injury and of the Union interest. Verification visits were carried out at the premises of the following interested parties: (a) Chinese exporting producers: — Hunan Hualian China Industry Co., Ltd and Hunan Liling Hongguanyao China Industry Co., Ltd and their related trading companies (‘the Hunan Hualian group’) in Hunan Province, China. — Guangdong Songfa Ceramics Co., Ltd and Chaozhou Lianjun Ceramics Co., Ltd (‘the Songfa goup’) in Guangdong Province, China. (b) Union producers: — Verification visits were carried out at the premises of four sampled Union producers. (c) Unrelated Importers: — Ritzenhoff & Breker GmbH & Co. KG, Bad Driburg, Germany. — Ritzenhoff AG, Marsberg, Germany.

1.3.5. Confidentiality request

(22) Similar to the request made by the complainant Union producers at initiation stage as outlined above in recital (7), the sampled Union producers requested that their identities be kept confidential for fear that they could face retaliation by customers or competitors concerned by this investigation, in accordance with Article 19(1) of the basic Regulation. The Commission individually examined the merits of each confidentiality request. It established that there was indeed evidence of a significant possibility of retaliation in each case and accepted that the names of those companies should not be disclosed. (17) Moreover, the Commission considered that it was not appropriate to disclose the five Member States where the sampled companies are located since this would also inevitably disclose the identity of the companies concerned.

(23) The CCCLA, both before and after final disclosure, claimed that the non-disclosure of the sampled Union producers' identity constituted a severe breach of the rights of defence of other interested parties. First, it maintained that no information had been provided on the links of Union producers with Chinese companies in the same sector. However, in the note to the file containing its assessment of the evidence put forward by the Union producers, the Commission had indicated the links that exist with Chinese companies which could be compromised by the disclosure of the Union producers' identity (18). Second, the CCCLA criticized that anonymity would prevent it from providing meaningful comments on the representativeness of the sample, from determining whether a sampled company produces branded or non-branded products and from verifying the correctness of the Commission's injury findings.

(24) According to the jurisprudence of the Court of Justice the protection of rights of defence must be, where necessary, reconciled with the principle of confidentiality, which is specifically laid down in Article 19 of the basic Regulation. (19) While that reconciliation permits the receipt of non-confidential summaries of such information (carried out, for instance, in the form of ranges and/or indexed elements of information) where that information would not lead to a disclosure of business secrets, it is not absolute.

(25) Applying that principle, the Commission has ensured throughout the current investigation that all relevant issues could be verified and dealt with in the files available for inspection by interested parties. These files included notes on the sample selection and its representativeness, open submissions of the sampled Union producers including ranges and/or indexed information and other relevant communication with those companies and their representatives, such as on the percentage of branded products produced by the different sampled companies. No information, other than that of which an open version was disclosed to the interested parties, was used in the choice of sampled companies or the determination of the Commission's injury findings. The disclosure of the names of these companies would therefore not have provided the interested parties with any additional information that would have been relevant to verifying the correctness of the Commission's findings. Hence, the Commission deemed the information provided in the documents disclosed to the interested parties sufficient to satisfy the rights of defence of interested parties, while disclosing the names of the Union producers would have likely caused irreparable and disproportionate economic harm to them. The claim was therefore rejected.

1.3.6. Procedure for the determination of the normal value under Article 2(6a) of the basic Regulation

(26) In view of the sufficient evidence available at the initiation of the investigation tending to show the existence in the PRC of significant distortions within the meaning of point (b) of Article 2(6a) of the basic Regulation, the Commission considered it appropriate to initiate the investigation on the basis of Article 2(6a) of the basic Regulation.

(27) Consequently, in order to collect the necessary data for the eventual application of Article 2(6a) of the basic Regulation, in the Notice of Initiation the Commission invited all known producers in the PRC to provide the information requested in Annex III to the Notice of the Initiation regarding the inputs used for producing the product under review. The two producers that sent sampling replies also submitted the information requested in Annex III.

(28) In order to obtain information it deemed necessary for its investigation with regard to the alleged significant distortions within the meaning of point (b) of Article2(6a) of the basic Regulation, the Commission also sent a questionnaire to the GOC. In that questionnaire, the GOC was invited to provide its views on the evidence contained in the applicant's request, on any other evidence on file concerning the existence of significant distortions, including specifically the Report, as well as on the appropriateness of the application of Article 2(6a) of the basic Regulation in the case at hand. No reply was received.

(29) In the Notice of Initiation, the Commission also invited all interested parties to make their views known, submit information and provide supporting evidence regarding the appropriateness of the application of Article 2(6a) of the basic Regulation within 37 days of the date of publication of this Notice in the Official Journal of the European Union.

(30) In the Notice of Initiation the Commission also specified that, in view of the evidence available, it might need to select an appropriate representative country pursuant to Article 2(6a)(a) of the basic Regulation for the purpose of determining the normal value based on undistorted prices or benchmarks.

(31) On 18 July 2018, the Commission published a first note to the file (20) (‘the Note of 18 July’) seeking the views of the interested parties on the relevant sources that the Commission might use for the determination of the normal value, in accordance with Article 2(6a)(e) second indent of the basic Regulation. Based on the replies to Annex III to the Notice of Initiation, the Commission provided a list of all factors of production such as materials, energy and labour used in the production of ceramic tableware and kitchenware by the exporting producers. In addition, based on the criteria guiding the choice of undistorted prices or benchmarks, the Commission identified three potential representative countries: Brazil, Thailand and Turkey.

(32) The Commission gave the opportunity to all interested parties to comment. The Commission received comments from the CCCLA and the applicant.

(33) The Commission addressed the comments received by interested parties in a second note (21) on the sources for the determination of the normal value, dated 9 October 2018 (‘the Note of 9 October’). In the Note of 9 October, the Commission further specified the list of factors of production and concluded that, at that stage, Turkey was the most appropriate representative country under Article 2(6a)(a), first indent of the basic Regulation. The Commission invited interested parties to comment. The Commission received comments from the CCCLA and the applicant. The present Regulation has addressed these comments in section 3.2.3 below.

1.3.7. Subsequent procedure

(34) On 26 April 2019, the Commission disclosed the essential facts and considerations on the basis of which it intended to maintain the anti-dumping duties (‘final disclosure’). All parties were granted a period of 20 days within which they could make comments on the disclosure. Upon request of the CCCLA, a hearing was held on 17 May 2019.

(35) The comments made by interested parties were considered by the Commission and taken into account, where appropriate.

2. PRODUCT CONCERNED AND LIKE PRODUCT

2.1. Product concerned

(36) The product concerned is the same as the one in the original investigation, that is ceramic tableware and kitchenware, excluding ceramic condiment or spice mills and their ceramic grinding parts, ceramic coffee mills, ceramic knife sharpeners, ceramic sharpeners, ceramic kitchen tools to be used for cutting, grinding, grating, slicing, scraping and peeling, and cordierite ceramic pizza-stones of a kind used for baking pizza or bread, currently falling under CN codes ex 6911 10 00, ex 6912 00 21, ex 6912 00 23, ex 6912 00 25 and ex 6912 00 29 (TARIC codes 6911100090, 6912002111, 6912002191, 6912002310, 6912002510 and 6912002910) and originating in the People's Republic of China (‘the product concerned’).

(37) Ceramic tableware and kitchenware can be made of porcelain (including China / bone China), of common pottery, stoneware, earthenware or fine pottery or other materials. The final ceramic product depends on the type and composition of the main raw materials such as clay, kaolin, feldspar and quartz.

(38) Ceramic tableware and kitchenware products are commercialised in a large variety of forms that have been evolving over time. They are used in a wide range of places, e.g. households, hotels, restaurants or care establishments and are principally intended to come into contact with food.

2.2. Like product

(39) As established in the original investigation, ceramic tableware and kitchenware produced and sold by the Union industry in the Union and ceramic tableware produced and sold on the domestic market of the PRC and ceramic tableware and kitchenware imported into the Union from the PRC share the same basic physical and chemical characteristics and the same end uses. They are therefore considered to be like products within the meaning of Article 1(4) of the basic Regulation.

3. LIKELIHOOD OF CONTINUATION OF DUMPING

(40) In accordance with Article 11(2) of the basic Regulation, the Commission examined whether the expiry of the measures in force would be likely to lead to a continuation of dumping from the PRC.

3.1. Cooperation from the sampled companies

(41) Based on Eurostat, during the review investigation period China exported 376 421 tonnes of ceramic tableware and kitchenware to the Union for a total value of 671 978 000 EUR. For the same period, the declared export volume and value of the cooperating Chinese exporting producers was 292 866 tonnes and 484 020 950 EUR corresponding to 78 % and 72 % respectively. In a fragmented industry such as the ceramic tableware, this can be considered as a high level of cooperation.

(42) At the same time, one of the four sampled groups withdrew from cooperation without providing a questionnaire reply and another one provided a severely deficient questionnaire reply that did not enable the Commission to obtain all the information it deemed necessary. Moreover, a third sampled group decided to withdraw from cooperation during the verification visit (22). During the verification of this group the Commission found that the data provided in the questionnaire reply could not be sufficiently verified due to lack of underlying evidence. In particular, the company failed to provide documentation evidencing production output as well as documentation concerning delivery of raw materials / finished goods during the review investigation period. Certain electronic documents, such as purchase orders and purchase contracts related to supply transactions during the review investigation period were also not available at the company's premises. Moreover, for at least one transaction the documentation provided did not correspond to the verified information / documentation that the Commission had received from the company's supplier. All these findings corroborate the conclusion that the information provided was not reliable and that part of the production and origin of EU export sales during the review investigation period was misdeclared.

(43) Thus, three out of the four sampled groups, despite their initial agreement, eventually did not cooperate in the investigation. The Commission informed the companies at hand as well as the authorities of China (23) that in accordance with Article 18 of the basic Regulation, it may base its findings regarding continuation and / or recurrence of dumping on facts available.

3.2. Dumping during the review investigation period

3.2.1. Normal value

(44) According to Article 2(1) of the basic Regulation, ‘the normal value shall normally be based on the prices paid or payable, in the ordinary course of trade, by independent customers in the exporting country’.

(45) However, according to Article 2(6a)(a) of the basic Regulation, ‘in case it is determined […] that it is not appropriate to use domestic prices and costs in the exporting country due to the existence in that country of significant distortions within the meaning of point (b), the normal value shall be constructed exclusively on the basis of costs of production and sale reflecting undistorted prices or benchmarks’, and ‘shall include an undistorted and reasonable amount of administrative, selling and general costs and for profits’ (‘administrative, selling and general costs’ is refereed hereinafter as ‘SG&A’).

(46) As further explained below, the Commission concluded in the present investigation that, based on the evidence available, the application of Article 2(6a) of the basic Regulation was appropriate.

3.2.2. Existence of significant distortions

3.2.2.1. Introduction

(47) Article 2(6a)(b) of the basic Regulation defines ‘significant distortions are those distortions which occur when reported prices or costs, including the costs of raw materials and energy, are not the result of free market forces as they are affected by substantial government intervention. In assessing the existence of significant distortions regard shall be had, inter alia, to the potential impact of one or more of the following elements: — the market in question being served to a significant extent by enterprises which operate under the ownership, control or policy supervision or guidance of the authorities of the exporting country; — state presence in firms allowing the state to interfere with respect to prices or costs; — public policies or measures discriminating in favour of domestic suppliers or otherwise influencing free market forces; — the lack, discriminatory application or inadequate enforcement of bankruptcy, corporate or property laws; — wage costs being distorted; — access to finance granted by institutions which implement public policy objectives or otherwise not acting independently of the state’.

(48) According to Article 2(6a)(b) of the basic Regulation, the assessment of the existence of significant distortions within the meaning of Article 2(6a)(a) shall take into account, amongst others, the non-exhaustive list of elements in the former provision. Pursuant to Article 2(6a)(b)of the basic Regulation, in assessing the existence of significant distortions, regard shall be had to the potential impact of one or more of these elements on prices and costs in the exporting country of the product concerned. Indeed, as that list is non-cumulative, not all the elements need to be given regard to for a finding of significant distortions. Moreover, the same factual circumstances may be used to demonstrate the existence of one or more of the elements of the list. However, any conclusion on significant distortions within the meaning of Article 2(6a)(a) must be made on the basis of all the evidence at hand. The overall assessment of the existence of distortions may also take into account the general context and situation in the exporting country, in particular when the concept of a ‘socialist market economy’ is enshrined in the Chinese Constitution and the entire legal system provides the government with substantial powers to intervene in the economy in such a way that prices and costs are not the result of the free development of market forces.

(49) Article 2(6a)(c) of the basic Regulation provides that ‘[w]here the Commission has well-founded indications of the possible existence of significant distortions as referred to in point (b) in a certain country or a certain sector in that country, and where appropriate for the effective application of this Regulation, the Commission shall produce, make public and regularly update a report describing the market circumstances referred to in point (b) in that country or sector’.

(50) In that respect, the Commission had previously produced the ‘Commission Staff Working Document on Significant Distortions in the Economy of the People's Republic of China for the Purposes of Trade Defence Investigations’ (hereinafter ‘the Report’). The Report points to the existence of substantial government intervention at many levels of the economy, including specific distortions in many key factors of production (such as land, energy, capital, raw materials and labour) as well as in specific sectors (such as the ceramic sector). The Report was placed in the investigation file at the initiation stage. The request also contained relevant evidence complementing the Report.

(51) The request supported allegations on significant distortions in the meaning of Article 2(6a)(b) referred to above, complementing the Report.

(52) Firstly, the applicant referred in Section 3.B.i. of the request to the existence of significant distortions in China as established in the Report. The applicant additionally expanded this information in a separate document annexed to its request (the ‘ThinkDesk report’). (24)

(53) Based on the above documents, the applicant alleged the existence of distortions in relation to factors of production. Moreover, the applicant alleged the existence of links between Chinese policy makers and management boards of tableware and kitchenware producing companies, qualified by the applicant as ‘relatively large’.

(54) The applicant's request also provides examples of substantial State support to tableware and kitchenware producers during the recent years. The ThinkDesk report highlights the financial reward and support measures granted to the ceramic sector by Chinese authorities. Moreover, the abovementioned report refers to the existence of an economic policy to boost innovative capacities and technology upgrading within the ceramic sector. In this respect, it mentions certain financial support measures granted by governments on all administrative levels. (25)

(55) Among other supportive measures, the applicant demonstrated the existence of government support for exports in the form of VAT rebates or export credits insurance via the state-owned China Export & Credit Insurance Corporation (Sinosure), which the Chinese ceramics producers have benefited from. (26) Furthermore, the ThinkDesk report bears out that the relevance of the ceramic industry for local economies has led to a strong financial and non-monetary support from regional governments. (27) Additionally, enterprises have been awarded financial support related to commercialisation, patents, and trademarks. (28)

(56) The applicant relied on the Report and the ThinkDesk report to claim the current dominant role of the State in the Chinese economy and concluded that the ceramic tableware and kitchenware sector was subject to significant market distortions.

(57) The Commission examined whether it was appropriate or not to use domestic prices and costs in China, due to the existence of significant distortions within the meaning of point (b) of Article 2(6a) of the basic Regulation. The Commission did so on the basis of the evidence available on the file, including the evidence contained in the Report, which relies on publicly available sources. That analysis covered the examination of the substantial government interventions in PRC's economy in general, but also the specific market situation in the relevant sector including the product under review.

(58) Pursuant to Section 5.2.2 of the Notice of Initiation and in accordance with Article 2(6a)(c) of the basic Regulation, all interested parties were invited to rebut, comment or supplement the evidence contained in the investigation file at the time of initiation tending to show the existence of significant distortions. None of the exporting producers made use of this possibility. Moreover, the exporting producers were specifically invited in the exporting producers' questionnaire to make claims and provide supporting evidence if they consider that some or all of their costs were not affected by significant distortions. One exporting producer claimed that his raw material costs were not distorted. However, despite an express request before verification, it did not provide any supporting evidence on spot. Moreover, as explained in recital (42) above, it even decided to stop cooperating altogether.

(59) Following disclosure, the CCCLA asserted that the WTO Anti-dumping Agreement does not provide for the procedural hurdle of commenting on a country Report. The Commission noted this claim is linked to the position of the CCCLA on the WTO conformity of the new methodology which is addressed below in recitals (126) and (127). Consequently, the claim was rejected.

(60) Following disclosure, the CCCLA also claimed that at no point were Chinese exporting producers offered a meaningful opportunity to demonstrate that they had not been individually affected by the significant distortions mentioned in the Report and the ThinkDesk report. Further, the CCCLA claimed that, under the EU's new anti-dumping methodology (Regulation (EU) 2017/2321 of the European Parliament and of the Council of 12 December 2017), an individual exporter no longer had the opportunity to demonstrate that it could be treated separately from the alleged country-wide situation, unlike the methodology applicable to the PRC under Article 2(7) of the previous version of the basic Regulation which allowed individual exporters to be granted market economy treatment if they so demonstrated. Therefore, the CCCLA claimed that the Commission had violated the principle of good administration, due process and rights of defence in relation to it an all Chinese exporters and made a breach of Article 41 of the EU's Charter of Fundamental Rights.

(61) The Commission recalls that the principle of sound administration, where it constitutes the expression of a specific right such as the right to have one's affairs handled impartially, fairly and within a reasonable time, as provided for in Article 41 of the Charter of Fundamental Rights, must be regarded as a rule of EU law whose purpose is to confer rights on individuals. However, according to the case law, the principle of good administration does not, in itself, confer rights upon individuals, except where it constitutes the expression of specific rights. (29) In this regard, it should be noted that, contrary to the CCCLA's claims, all parties had the possibility throughout the expiry review investigation to comment on the existence of significant distortions, the link to the product concerned and their effect on their business. Exporting producers could have replied to section F-5 to the questionnaire. One exporting producer could have tried to adduce evidence supporting his claim that raw material costs are not distorted. As mentioned in recital (58), none of those parties chose to do so. Therefore, those interested parties are unable to invoke the principle of good administration, as expressed in Article 41 of the Charter of Fundamental Rights of the EU for their claim on the existence of significant distortions for the exporting producers concerned.. Furthermore, theoretical arguments based on abstract comparisons between different versions of the anti-dumping legislation are not relevant in the context of Article 41 of the Charter, as the Commission is legally bound to follow the legislation in force. This said, the Commission also notes that, according to Article 2(6a)(a), 2nd subparagraph, third indent of the basic Regulation, the domestic costs of exporters can be used to construe normal value ‘to the extent that they are positively established not to be distorted, on the basis of accurate and appropriate evidence’. That means that the individual situation of an exporting producer can be taken into account, if this requirement is met, so that his own costs will be used for the determination of the normal value. In any event, the Commission recalls that the CCCLA cannot advance a procedural right which does not affect it personally and adversely, so that it cannot claim the violation of a specific right that is personal to its members.

(62) Hence, the Commission rejected the claim that there had been a violation of Article 41 of the Charter.

3.2.2.2. Significant distortions affecting the domestic prices and costs in the People's Republic of China

(63) The Chinese economic system is based on the concept of a ‘socialist market economy’. That concept is enshrined in the Chinese Constitution and determines the economic governance of China. The core principle is the ‘socialist public ownership of the means of production, namely, ownership by the whole people and collective ownership by the working people’. The State-owned economy is the ‘leading force of the national economy’ and the State has the mandate ‘to ensure its consolidation and growth.’ (30) Consequently, the overall setup of the Chinese economy not only allows for substantial government interventions into the economy, but such interventions are expressly mandated. The notion of supremacy of public ownership over the private one permeates the entire legal system and is emphasized as a general principle in all central pieces of legislation. The Chinese property law is a prime example: it refers to the primary stage of socialism and entrusts the State with upholding the basic economic system under which the public ownership plays a dominant role. Other forms of ownership are tolerated, with the law permitting them to develop side by side with the State ownership (31).

(64) In addition, under Chinese law, the socialist market economy is developed under the leadership of the Chinese Communist Party (CCP). The structures of the Chinese State and of the CCP are intertwined at every level (legal, institutional, personal), forming a superstructure in which the roles of CCP and the State are indistinguishable. Following an amendment of the Chinese Constitution in March 2018, the leading role of the CCP was given an even greater prominence by being reaffirmed in the text of Article 1 of the Constitution. Following the already existing first sentence of the provision: ‘[t]he socialist system is the basic system of the People's Republic of China’ a new second sentence was inserted which reads: ‘[t]he defining feature of socialism with Chinese characteristics is the leadership of the Communist Party of China’ (32). This illustrates the unquestioned and ever growing control of the CCP over the economic system of China. This leadership and control is inherent to the Chinese system and goes well beyond the situation customary in other countries where the governments exercise general macroeconomic control within the boundaries of which free market forces are at play.

(65) The Chinese State engages in an interventionist economic policy in pursuance of goals, which coincide with the political agenda set by the CCP rather than reflecting the prevailing economic conditions in a free market. (33) The interventionist economic tools deployed by the Chinese authorities are manifold, including the system of industrial planning, the financial system, as well as the level of the regulatory environment.

(66) First, on the level of overall administrative control, the direction of the Chinese economy is governed by a complex system of industrial planning which affects all economic activities within the country. The totality of these plans cover a comprehensive and complex matrix of sectors and crosscutting policies and is present on all levels of government. Plans at provincial level are detailed while national plans set broader targets. Plans also specify the means in order to support the relevant industries/sectors as well as the timeframes in which the objectives need to be achieved. Some plans still contain explicit output targets while this was a regular feature in previous planning cycles. Under the plans, individual industrial sectors and/or projects are being singled out as (positive or negative) priorities in line with the government priorities and specific development goals are attributed to them (industrial upgrade, international expansion etc.). The economic operators, private and State-owned alike, must effectively adjust their business activities according to the realities imposed by the planning system. This is not only because of the binding nature of the plans but also because the relevant Chinese authorities at all level of government adhere to the system of plans and use their vested powers accordingly, thereby inducing the economic operators to comply with the priorities set out in the plans (see also section 3.2.2.5 below). (34)

(67) Second, on the level of allocation of financial resources, the financial system of China is dominated by the State-owned commercial banks. Those banks, when setting up and implementing their lending policy need to align themselves with the government's industrial policy objectives rather than primarily assessing the economic merits of a given project (see also section 3.2.2.8 below). (35) The same applies to the other components of the Chinese financial system, such as the stock markets, bond markets, private equity markets etc. Also these parts of the financial sector other than the banking sector are institutionally and operationally set up in a manner not geared towards maximizing the efficient functioning of the financial markets but towards ensuring control and allowing intervention by the State and the CCP. (36)

(68) Third, on the level of regulatory environment, the interventions by the State into the economy take a number of forms. For instance, the public procurement rules are regularly used in pursuit of policy goals other than economic efficiency, thereby undermining market based principles in the area. The applicable legislation specifically provides that public procurement shall be conducted in order to facilitate the achievement of goals designed by State policies. However, the nature of these goals remains undefined, thereby leaving broad margin of appreciation to the decision-making bodies. (37) Similarly, in the area of investment, the Chinese government maintains significant control and influence over destination and magnitude of both State and private investment. Investment screening as well as various incentives, restrictions, and prohibitions related to investment are used by authorities as an important tool for supporting industrial policy goals, such as maintaining State control over key sectors or bolstering domestic industry. (38)

(69) In sum, the Chinese economic model is based on certain basic axioms which provide for and encourage manifold government interventions. Such substantial government interventions are at odds with free play of market forces, resulting in distorting the effective allocation of resources in line with market principles. (39)

3.2.2.3. Significant distortions according to Article 2(6a)(b), first indent of the basic Regulation: the market in question being served to a significant extent by enterprises which operate under the ownership, control or policy supervision or guidance of the authorities of the exporting country

(70) In the PRC, enterprises operating under the ownership, control and/or policy supervision or guidance by the State represent an essential part of the economy.

(71) With regard to State ownership, as the Chinese ceramic tableware and kitchenware industry is highly fragmented, it is difficult to draw general conclusions on the sector's ownership patterns. The applicant's request analysed nine listed companies, which are relatively large kitchen and tableware manufacturers and exporting a significant share of their output. According to the applicant, in eight of these nine companies the State held at the time of analysis a stake up to 5 %, while various state-owned entities held a cumulative stake of close to 50 % in the ninth company. (40) The State capital stakes in other leading ceramic tableware and kitchenware producing companies, (41) range from 46,5 % in Jiangsu Gaochun, (42) over 30,34 % in Jingdezhen Redleaf Ceramics, (43) to 33 % in Sanyuan Ceramics. (44) The Commission has no figures at its disposal about the other Chinese companies in the sector. The evidence on file therefore does not support a finding of significant State ownership in the ceramic tableware and kitchenware industry.

(72) With regard to control by the State, the government and the CCP maintain structures that ensure their continued influence over enterprises. The State (and in many respects also the CCP) not only actively formulates and oversees the implementation of general economic policies by individual enterprises, but it also claims its rights to participate in their operational decision making. The elements that point to the existence of government control over enterprises in the ceramic tableware and kitchenware sector is further developed in section 3.2.2.4 below.

(73) As concerns policy supervision and guidance by the State in the ceramics sector, the analysis is set out in sections 3.2.2.4 and 3.2.2.5 below. With the high level of government control and intervention in the ceramic sector as described below, even privately owned ceramic tableware and kitchenware producers are prevented from operating under market conditions.

(74) On the basis of the above, the Commission concluded that the ceramic tableware and kitchenware market in the PRC was served to a significant extent by enterprises subject to control or policy supervision or guidance by the Chinese government.

3.2.2.4. Significant distortions according to Article 2(6a)(b), second indent of the basic Regulation: State presence in firms allowing the state to interfere with respect to prices or costs

(75) The Chinese State is in a position to interfere with prices and costs through State presence in firms. In particular, CCP cells in enterprises, state owned and private alike, represent an important channel through which the State can interfere with business decisions. According to the PRC's company law, a CCP organisation is to be established in every company (with at least three CCP members as specified in the CCP Constitution (45)) and the company shall provide the necessary conditions for the activities of the party organisation. In the past, this requirement appears not to have always been followed or strictly enforced. However, since at least 2016 the CCP has reinforced it claims to control business decisions in SOEs as a matter of political principle. The CCP is also reported to exercise pressure on private companies to put ‘patriotism’ first and to follow party discipline. (46) In 2017, it was reported that party cells existed in 70 % of some 1.86 million privately owned companies, with growing pressure for the CCP organisations to have a final say over the business decision within their respective companies. (47) These rules are of general application throughout the Chinese economy, across all sectors, including the ceramic sector. Hence, it is determined that these rules apply also to the producers of ceramic tableware and kitchenware and the suppliers of their inputs.

(76) Specifically in the ceramic tableware and kitchenware sector, tight links exist between decision making processes of Chinese ceramic tableware and kitchenware-making companies and the State, in particular the CCP. The ThinkDesk report puts forward names of persons occupying managing positions in six of those companies who hold or held State or public functions. (48) The Commission established on the basis of other sources that in relation to three of these leading ceramic tableware producers: the chairman of the board of directors and general manager of the sampled company Guangdong Songfa Ceramics Co. Ltd, one of the biggest exporters on the Union market, served as delegate to the 11th National People's Congress of China (49) and was a member of the 12th People's Congress of Guangdong Province; (50) the chairman of another listed Guangdong company - the Great Wall of Cultural Group Holding Co Ltd. - held the post of delegate to the said 12th People's Congress of Guangdong Province; (51) the chairman of the listed company Guangdong Sitong Group Co., Ltd. was also member of the Chaozhou Municipal Committee of the People's Political Consultative Conference; (52) moreover, the same company's vice-chairman and general manager has been at the same time occupying the post of member of the Standing committee of the 13th Chaozhou Municipal People's Congress. (53) In addition, the Commission established that all candidates to be elected in 2018 as non-independent director in the board of Songfa Ceramics Co. Ltd were members of the CCP. (54)

(77) The Commission also found with regard to Songfa Ceramics that in 2017 and 2018 the company was the recipient of financial transfers that have been defined in their accounts as ‘subsidies for the expenses for Party members' activities related to the ‘two new types of organisations’’. (55) The term ‘two new types of organisations’ defines a State policy aiming at creating grassroots organisations (essentially party cells) in corporate enterprises and in ‘social organisations’. (56) Regardless of the amounts of the financial transfers to Songfa, the sole fact of their existence proves the close link between the ceramics producing enterprises and the CCP, and the fact that the CCP develops its activities within the company.

(78) The State's presence and intervention in the financial markets (see also section 3.2.2.8 below) as well as in the provision of raw materials and inputs have an additional distorting effect on the market. (57)

(79) Based on all of the above, the Commission concluded that the State presence in firms in the ceramic tableware and kitchenware sector, as well as in in the financial sector and other input sectors, combined with the framework described in section 3.2.2.3 and in the subsequent sections, allows the GOC to interfere with respect to prices and costs.

3.2.2.5. Significant distortions according to Article 2(6a)(b), third indent of the basic Regulation: public policies or measures discriminating in favour of domestic suppliers or otherwise influencing free market forces

(80) The direction of the Chinese economy is to a significant degree determined by an elaborate system of planning which sets out priorities and prescribes the goals the central and local governments must focus on. Relevant plans exist on all levels of government and cover virtually all economic sectors. The objectives set by the planning instruments are of binding nature and the authorities at each administrative level monitor the implementation of the plans by the corresponding lower level of government. Overall, the system of planning in China results in resources being driven to sectors designated as strategic or otherwise politically important by the government, rather than being allocated in line with market forces. (58)

(81) The Chinese ceramic sector, including production of ceramic consumer goods, such as ceramic tableware and kitchenware, is a labour-intensive sector, which possesses a traditional value in China, and in relation to this the Chinese State has been closely overseeing, steering and managing its development through various planning documents. (59) Ceramic tableware and kitchenware production is governed by the Chinese rulebook related to light industries, via the overarching instrument of the 13th Light Industry Development Plan for the years 2016-2020. The latter Plan notably states that for all sectors covered (therefore also for the tableware and kitchenware sector) it implements the spirit of the decisions taken in the National Congress of the CPC and a range of Plenary Sessions of the 18th Party Congress. This plan imposes multiple provisions in covered sectors (including the ceramic tableware and kitchenware sector) regarding supply and demand management, corporate structure organisation, value chain management, export patterns, as well as production and investment planning. It sets an annual growth target for added value in the sectors concerned of 6-7 %. It also enumerates a number of support measures, the aim of which is notably to lead light industry enterprises to achieve international competitiveness. (60) For the ceramic sector, it stipulates very detailed provisions on product development. Among others, in relation to ceramic tableware and kitchenware products, the State instructs to ‘develop in priority low-resource consuming products such as high-grade bone porcelain, high-quartz porcelain, talc porcelain, high feldspar porcelain, and green household ceramic products without heavy metal dissolution; strengthen the enterprises capacities for production innovation and design; raise the products' added value; strengthen the legacy and development of the artistic ceramics' traditional techniques; develop in priority artistic ceramic fine products; develop in priority high-purity, ultra-fine ceramic materials with outstanding performances such as high-strength, high-resistance, high-temperature proof, corrosion-proof, thermal-shock-proof, molten-metal-proof etc, high-performance ceramic heat exchange materials, high-performance new ceramic membrane materials, high-quality household ceramic materials.’ (61) It also contains provisions regarding companies' export activities: ‘[…] Actively conquer new and emerging markets such as the Middle-East, Russia, Africa, Europe, South-East Asia, West-Asia, South-America, Central-America, etc.’; ‘strengthen the international production capacity cooperation, support brand enterprises to ‘reach out’ [to foreign markets], set up logistics centres and distribution centres in major sales markets,[…]’. (62) As one of the measures to implement the goals above, the Plan stipulates Chinese instruments that manage market entry – notably legislation restricting investments in certain sectors: ‘The State Council shall, in the form of a list, clearly set out the industries, fields, business sectors in which investment operations are prohibited or restricted.’ Furthermore, the State enumerates in the Plan a range of support measures that will be available to support sectors concerned (therefore also ceramic tableware and kitchenware production) such as, among others, innovation funds, preferential loans, export incentives, financial transfers, tax relieves, land-use cost relief or employment-stabilisation schemes. Evidence on the file provided in the Applicant's request, and based on the Annual Reports of several ceramic tableware and kitchenware-making companies includes examples of the said support measures. (63)

(82) The GOC's intervention into the ceramic tableware and kitchenware sector is apparent not only through the central Plan described above, but also through a full range of top-down planning documents issued at all levels – from national to municipal. A notable example is the Guangdong Province, which hosts the highest number of cooperating exporting producers in this investigation, and features the highest production of ceramic goods in China (64). In that Province, the sector has been governed between 2016 and 2018 by a regional Plan - the Guangdong ceramic industry transformation and upgrading technology route and action plan (hereinafter ‘Guangdong Action Plan’). (65) In line with central planning documents, the Guangdong Action Plan stipulates notably, among its main objectives, ‘a continuous optimisation of industry structures: [through the] significant increase [of] the proportion of […] high value-added products; the build[ing of] at least two national demonstration bases for a new industrialisation model; [the] foster[ing of] at least: two industrial clusters of over RMB 50 billion, 1-2 enterprises (groups) with an annual main business income of over RMB 10 billion, and 40 enterprises with an annual main business income of over RMB 1 billion.’ (66) The said Action Plan further instructs to ‘improve the level of industry development’, inter alia: by ‘optimizing industry clusters: further accelerat[ing] the construction of ceramic production bases such as Foshan, Chaozhou, Meizhou and Qingyuan’, by ‘Extend[ing] the industry value chain: actively get[ing] integrated into the global ceramic industry value chain,’ [and] ‘actively participat[ing] in international exchanges and cooperation: mak[ing] full use of two types of resources (67) and two types of markets (68), implement[ing] the go-out strategy, improve[ing] the industry's international competitiveness.’ (69) The Guangdong Action Plan, following the lines of the central 13th FYP on Light Industries, sets out specifically targeted guidance for product development to be embraced by Guangdong ceramics producers: ‘As regards household (art) ceramics: develop high-end, complete sets of products as well as household ceramics turned into art products and art ceramics turned into household products; jointly develop materials such as glass ceramics, reinforced porcelain, bone china, magnesia porcelain, high quartz porcelain, high-grade enamel, etc; develop fine colour glazes.’ (70) Ultimately, the Action Plan sets out a specific distribution of roles with regard to the implementation of its provisions, assigning these execution tasks, notably: to the Province's Economic and Information Technology Commission in ‘taking the lead in coordinating and guiding the transformation and upgrading of the ceramic industry in the whole province’, the Province's Environmental Protection Department in ‘supervising and guiding the local environmental protection authorities which, in accordance with law, proceed to the environmental protection appraisal and approval, the environmental protection authorisation and daily environmental supervision and management of ceramic industry projects,’, to the Province's Departments of land and resources, finance, taxation, and electric power in ‘perform[ing] their duties to ensure that relevant policies are duly implemented’, and to each city's competent economic and information technology authorities in ‘ensur[ing] the close coordination and cooperation of the relevant departments as well as joint management, so as to make sure that key enterprises' transformation and upgrading projects are speedily set up, in accordance with planned schedule.’ (71)

(83) As illustrated in the previous recital regarding Guangdong Province, the management of the ceramic sector in the Province goes down to the very local level. As an example, producers of ceramic goods in the City of Chaozhou - one of the key ceramics production sites (72) (referred to in the Guangdong Action Plan) - are also bound to abide by a local sectoral plan: the Roadmap and Action Plan of the City of Chaozhou for the Transformation and Technological Upgrading of the Ceramic Sector (73) (hereafter the Chaozhou Action Plan), which itself fulfils the letter of a general industrial plan for the city (the 13th FYP For The Economic And Social Development Of The City Of Chaozhou) (74). The Chaozhou Action Plan notably gave specific instructions as to what the city should achieve in terms of the industrial structure and production – the goals consisted in, e.g. the city hosting at least five producers with an annual output value of more than RMB 500 million or at least ten companies achieving stock market listings (with the support of special State measures (75)) by 2018. The Chaozhou Action Plan also regulated the city's goals in term of product structure: by the end of the planning period at least 10 % of large enterprises had to use high technology, while the share of newly introduced products would have to account for at least 10 % of the turnover. (76)

(84) Chaozhou is not the only city where companies' operations are subject to State planning: ceramics manufacturers in Foshan city, another major ceramic production base referred to in the Guangdong Action Plan, is subject to the Foshan Municipality Plan for the development of a modern ceramics industry 2010-2020 (‘Foshan Plan’). (77) As per the latter document, local industry is to be re-shaped ‘in accordance with the principle “support a large number of enterprises, transform and upgrade some enterprises, transform and eliminate a number of enterprises”, ensur[ing] the gradual transformation of the current ceramics industry from a low-end into a high-end industry’. (78) The Foshan Plan has set a gradual range of quantitative and qualitative output targets for local companies: by 2012 ‘maintain the industry's steady development and moderate growth so as to reach RMB 72 billion; ensure that there are 10 enterprises whose yearly output value exceeds RMB 1 billion; high-end construction ceramics, sanitary ceramics, art ceramics, special ceramics and ceramic creative industries shall gradually emerge’; by 2015 ‘maintain the industry's steady development and moderate growth so as to reach RMB 80 billion; ensure that there are two enterprises whose yearly output value exceeds RMB 2 billion and 15 enterprises whose yearly output value exceed RMB 1 billion; [and] the relative share of high-end construction ceramics, sanitary ceramics, art ceramics, special ceramics and ceramic creative industries in the overall ceramics industry shall significantly increase.’; while in the medium and long term (2016-2020), in line with the Foshan plan: ‘the production volume shall maintain China's leading position in the ceramics industry as well as an important share of the worlds' ceramics industry [and] indicators such as the ceramics overall output value and volume, profit, R&D expenditure ratio, overall economic content, etc. shall reach a relatively high level, so as to ensure that Foshan effectively becomes the world's “ceramics capital”.’ (79)

(85) The Commission considered that the above body of evidence concerning the ceramics tableware and kitchenware sector was sufficient to consider that public policies or measures influence free market forces in the ceramics sector.

(86) In any case, as regards distortions of raw materials, the CCCLA alleged that no distortions of raw materials used in the production of the product under review would exist. The CCCLA provided no evidence to support its allegation. The Commission notes that while it was not required to perform such an analysis with regard to the raw materials used in the production of the product under review to establish that public policies affect free market forces in the tableware sector, it found an overwhelming number of public policy documents and measures which have the potential to influence the free play of market forces in the market of raw materials used in the production of ceramic tableware and kitchenware.

(87) With regard to quartz (HS code 250510), which is widely used by the ceramic industry in China, the Jiangxi (80) comprehensive plan for mineral resources 2016-2020 (81) lists powdered quartz as one of the minerals subject to State policy management, notably one for which supply security and supply capacity are to be increased. (82) Quartz powder is also included in the State quantitative regulation mechanism for development and utilisation as one of the minerals the mining and development of which is to be encouraged. (83) Quartz sand for ceramics also appears in the National 13th FYP on Mineral Resources 2016-2020 (84) as one of the minerals for which minimum size criteria apply for the opening of mines. (85)

(88) With regard to bentonite (HS code 250810), another raw material used in certain ceramic tableware and kitchenware manufacturing processes, the Jiangxi comprehensive plan for mineral resources (see above) lists it as one of the minerals for which development and exploration are to be speeded up ‘so as to the resource advantage shall be turned into an economic advantage as soon as possible’. (86)

(89) With regard to pigments (HS code 320710), which are widely used in the ceramic tableware and kitchenware production, they are featured in the Development plan for industry, technology and innovation capacities (2016-2020), (87) as one of the petrochemical and chemical industry priority development areas, with the State instructing under that plan to ‘ensure the sustained production of around 1 000 tonnes of Phthalocyanine pigments, heterocyclic organic pigments and other types of organic pigments’. (88)

(90) With regard to gypsum (HS code 252010), this raw material appears in the national 13th FYP on mineral resources (see above) as one of the minerals for which minimum size criteria apply for the opening of mines. (89)

(91) Finally, kaolin (HS code 2507), which constitutes one of the main raw materials in the production of ceramic tableware and kitchenware, is covered by several regional and local planning documents dealing with the management of extraction and production. Notably, the Guangxi Province (90) Mineral Resources Plan (2016-2020) (91) establishes provisions regarding a Hepu Kaolin Resources Industry Base, which implies ‘expand[ing] the mining of Hepu kaolin soil, improve[ing] the kaolin deep processing capacity and level, and focus[ing] on the development of construction, sanitary, household and art ceramics, kaolin industry for paper and painting, and further increase[ing] the added value of mineral products; by 2020, establish[ing] 8 to 10 kaolin deep processing backbone enterprises, and mak[ing] Hepu area a key kaolin production base at country level.’ (92) It also contains provisions aiming at shaping industrial extraction structures and capacity, including with regard to kaolin supply: ‘In accordance with the economic and social development needs, we shall strongly promote the development of specific characteristics, advantages and emerging mineral resources industries. Focusing on minerals such as […], kaolin, […], taking the resource conditions into account, in areas with strong environmental bearing capacity and with comprehensive supporting facilities, we shall promote the building of large and medium-sized mines with market competitiveness, ensure effective industry concentration and scale development so as to improve the supply capacity, mining and use level of key minerals’. (93) Finally, the Plan regulates minimum production capacities for mining companies by setting minimum mining volumes by company category, including for kaolin output. (94)

(92) The market for kaolin production is also covered by the Guangdong Province Mineral Resources Plan (2016-2020) (95), which is of particular importance, as Guangdong Province is key for ceramic production (see recital (82). Similarly to the Guangxi Province Plan described above, the Guangdong Plan puts forward numerous provisions regarding the management and planning of minerals extraction and production, including with regard to kaolin. It notably sets out among its guiding concepts: ‘(…) the speed[ing]-up [of] strategic actions and targets to ensure a breakthrough as regards mineral prospection, [the] improve[ment of] resource exploration, mining and protection layouts’ or the ‘further foster[ing of] supply side structural reforms’. (96)

(93) As in the case of ceramic tableware and kitchenware production, planning documents regarding kaolin extend from the province concerned down to the municipal level. As an example, the city of Beihai, in Guangxi Province (see above), possesses its own plan dedicated to the management of mineral resources (97), which features provisions regarding kaolin extraction and production. Notably, that said plan sets for the city's industrial fabric the following mining, production and use targets for mineral resources: ‘by 2020, ensure the steady economic development of the whole city's mining industry, ensure that the mineral industry achieves RMB 450 million in production value and a mineral production volume of 9 million tons,’ and the following industrial goals, including for kaolin and quartz sand: ‘on the basis of the existing mining capacity, focus on the mining and use of kaolin and quartz sand to be used for glass [and] set up Guangxi's largest processing, importing and exporting base for kaolin (ceramic earth), high-purity quartz sand and other non-ferrous mineral products, largest ceramics manufacturing base, and largest cement production base.’ (98) The Plan draws up also targets for 2025, including for use and production increases: ‘Strongly develop non-ferrous and construction materials' mining and use; focus on the development of deep processing industries such as kaolin, quartz sand to be used for glass, etc.; strive to ensure that the mineral industry accounts for RMB 600 million in production value by 2025;[…]; effectively and significantly expand and industrialise mining; significantly increase economical and intensive use of mineral resources’. Notably it also indicates the clear goal of the local authorities, which is to ‘achieve a comprehensive management of mineral industry.’ (99) One of the elements upon which such management policy rests is the regulation of the local industry's structure and output: ‘Determine one key mining area for the whole city: Hepu kaolin key mining area, covering 542,49 km2. In this key mining areas there are currently 6 large-sized kaolin mines. By 2020 the number of kaolin mines in this key mining area shall be controlled at 8 or less and the size of production shall be large or medium sized. Among the 8 areas envisioned, 7 areas have already been delineated, and one has still to be delineated.’ (100)

(94) As illustrated in the Planning documents referred to above, it appears that the GOC guides the development of the ceramic tableware and kitchenware sector in accordance with a broad range of policy tools and directives related, inter alia: to market composition and restructuring, raw materials, investment, capacity management, product range, geographical location, upgrading, etc. Through these and other means, the GOC directs and controls a full range of aspects in the development and functioning of the sector. (101). The current problem of overcapacity in the ceramic tableware and kitchenware sector, as described in section 3.3.1 below, is arguably the clearest illustration of the implications of the GOC's policies and the resulting distortions. (102)

(95) In sum, the Commission established that the GOC has public policies in place influencing free market forces in the ceramics tableware and kitchenware sector, including the raw materials used in that sector.

3.2.2.6. Significant distortions according to Article 2(6a)(b), fourth indent of the basic Regulation: the lack, discriminatory application or inadequate enforcement of bankruptcy, corporate or property laws

(96) According to the information on file, the Chinese bankruptcy system delivers inadequately on its own main objectives such as to fairly settle claims and debts and to safeguard the lawful rights and interests of creditors and debtors. This appears to be rooted in the fact that while the Chinese bankruptcy law formally rests on principles that are similar to those applied in corresponding laws in countries other than China, the Chinese system is characterised by systematic under-enforcement. The number of bankruptcies remains notoriously low in relation to the size of the country's economy, not least because the insolvency proceedings suffer from a number of shortcomings, which effectively function as a disincentive for bankruptcy filings. Moreover, the role of the State in the insolvency proceedings remains strong and active, often having direct influence on the outcome of the proceedings. (103)

(97) In addition, the shortcomings of the system of property rights are particularly obvious in relation to ownership of land and land-use rights in China. (104) All land is owned by the Chinese State (collectively owned rural land and State-owned urban land). Its allocation remains solely dependent on the State. There are legal provisions that aim at allocating land use rights in a transparent manner and at market prices, for instance by introducing bidding procedures. However, these provisions are regularly not respected, with certain buyers obtaining their land for free or below market rates. (105) Moreover, authorities often pursue specific political goals including the implementation of the economic plans when allocating land. (106)

(98) Therefore, the Chinese bankruptcy and property laws do not work properly, thus resulting in distortions when maintaining insolvent firms afloat and when allocating land use rights in the PRC. These laws also apply with respect to ceramic tableware and kitchenware production. Moreover, the Commission has already established in the past that the sector benefited from land use rights operations, which were subject to State distortions (107).

(99) In light of the above, the Commission concluded that there was discriminatory application or inadequate enforcement of bankruptcy and property laws in the ceramic tableware and kitchenware sector.

3.2.2.7. Significant distortions according to Article 2(6a)(b), fifth indent of the basic Regulation: wage costs being distorted

(100) A system of market-based wages cannot fully develop in China as workers and employers are impeded in their rights to collective organisation. China has not ratified a number of essential conventions of the International Labour Organisation (ILO), in particular those on freedom of association and on collective bargaining. (108) Under national law, only one trade union organisation is active. However, this organisation lacks independence from the State authorities and its engagement in collective bargaining and protection of workers' rights remains rudimentary. (109) Moreover, the mobility of the Chinese workforce is restricted by the household registration system, which limits access to the full range of social security and other benefits to local residents of a given administrative area. This typically results in workers who are not in possession of the local residence registration finding themselves in a vulnerable employment position and receiving lower income than the holders of the residence registration. (110) Those findings lead to the distortion of wages costs in China.

(101) As mentioned above, labour accounts for a significant proportion of the cost of production of the product under review, as this is a labour-intensive process. The ceramics sector, including the production of tableware, is also subject to the Chinese labour law system described. The latter sector is thus affected by the distortions of wage costs both directly (when making the product concerned) as well as indirectly (when having access to capital or inputs from companies subject to the same labour system in China).

(102) On the basis of the above, the Commission concluded that wage costs were distorted in the ceramic tableware and kitchenware sector.

3.2.2.8. Significant distortions according to Article 2(6a)(b), sixth indent of the basic Regulation: access to finance granted by institutions which implement public policy objectives or otherwise not acting independently of the State

(103) Access to capital for corporate actors in China is subject to various distortions.

(104) Firstly, the Chinese financial system is characterised by strong position of State-owned banks (111), which, when granting access to finance, take into consideration criteria other than economic viability of a project. Similarly to non-financial SOEs, the banks remain connected to the State not only through ownership but also via personal relations (the top executives of the large State-owned financial institutions are ultimately appointed by the CCP) (112) and, again just like non-financial SOEs, the banks regularly implement public policies designed by the government. In doing so, the banks comply with an explicit legal obligation to conduct their business in accordance with the needs of the national economic and social development and under the guidance of the industrial policies of the State (113). This is compounded by additional existing rules, which direct finances into sectors designated by the government as encouraged or otherwise important. (114)

(105) While it is acknowledged that various legal provisions refer to the need to respect normal banking behaviour and prudential rules such as the need to examine the creditworthiness of the borrower, the overwhelming evidence, including findings made in trade defence investigations, suggests that these provisions play only a secondary role in the application of the various legal instruments.

(106) Furthermore, bond and credit ratings are often distorted for a variety of reasons including the fact that the risk assessment is influenced by the firm's strategic importance to the Chinese government and the strength of any implicit guarantee by the government. Estimates strongly suggest that Chinese credit ratings systematically correspond to lower international ratings.

(107) This results in a bias for lending to SOEs, large well-connected private firms and firms in key industrial sectors, which implies that the availability and cost of capital is not equal for all players on the market.

(108) Secondly, borrowing costs have been kept artificially low to stimulate investment growth. This has led to the excessive use of capital investment with ever lower returns on investment. This is illustrated by the recent growth in corporate leverage in the state sector despite a sharp fall in profitability, which suggests that the mechanisms at work in the banking system do not follow normal commercial responses.

(109) Thirdly, although nominal interest rate liberalization was achieved in October 2015, price signals are still not the result of free market forces, but are influenced by government induced distortions. Indeed, the share of lending at or below the benchmark rate still represents 45 % of all lending and recourse to targeted credit appears to have been stepped up, since this share has increased markedly since 2015 in spite of worsening economic conditions. Artificially low interest rates result in under-pricing, and consequently, the excessive utilization of capital.

(110) Overall credit growth in China indicates a worsening efficiency of capital allocation without any signs of credit tightening that would be expected in an undistorted market environment. As a result, non-performing loans have increased rapidly in recent years. Faced with a situation of increasing debt-at-risk, the Chinese government has opted to avoid defaults. Consequently, bad debt issues have been handled by rolling over debt, thus creating so called ‘zombie’ companies, or by transferring the ownership of the debt (e.g. via mergers or debt-to-equity swaps), without necessarily removing the overall debt problem or addressing its root causes.

(111) In essence, despite the recent steps that have been taken to liberalize the market, the corporate credit system in China is affected by significant systemic issues and distortions resulting from the continuing pervasive role of the state in the capital markets.

(112) The ceramic tableware and kitchenware production or the suppliers of raw materials and other inputs also benefits from this financial system. In particular, certain Chinese producers of ceramic tableware and kitchenware had received non-market conform State support in the recent past, which had the characteristics of financial support granted on non-commercial terms. (115) Therefore, the latter support and the general substantial government intervention in the financial system described above leads to the market conditions being severely affected at all levels.

(113) In light of the above, the Commission concluded that the ceramic tableware and kitchenware producers had access to finance granted by institutions which implement public policy objectives or otherwise not acting independently from the state.

3.2.2.9. Systemic nature of the distortions described

(114) The Commission noted that the distortions described in the Report are characteristic for the Chinese economy. The evidence available shows that the facts and features of the Chinese system as described above in Sections 3.2.2.2. – 3.2.2.5. as well as in Part A of the Report apply throughout the country and across the sectors of the economy. The same holds true for the description of the factors of production as set out above in Sections 3.2.2.6. - 3.2.2.8. above and in Part B of the Report.

(115) In its comments of 30 July 2018 to the Note of 18 July 2018, the CCCLA objected to the application of Article 2(6a) of the basic Regulation. It its view, the Commission should first verify the alleged significant distortion(s) in the Chinese ceramic tableware industry and make a positive determination, as required in Article 2(6a)(a), before looking for cost of production (‘COP’) data from alternative sources. In its additional comments of 13 August 2018, the CCCLA explained that Chinese exporting producers usually do not import the 15 raw materials used for the product concerned, but purchase them from the local market. In addition, it argued that ‘the complainant had not claimed a significant distortion in the Chinese raw material market and neither did the Commission find in its “country report” concerning a possible distortion in China regarding the raw materials of the ceramic industry’. Therefore, according to CCCLA, there was no reason to replace the actual domestic purchase prices of the Chinese exporters for these 15 raw materials with the import prices from Brazil, Thailand and Turkey. The point is reiterated in the comments of 19 October 2018, according to which the Commission should look into the actual purchase prices of the Chinese exporting producers for their raw materials.

(116) The Commission invited the CCCLA to substantiate its claim with ‘accurate and appropriate evidence’ as required by Article 2(6a)(a), third indent of basic Regulation. However, neither CCCLA nor any of the sampled companies belonging to CCCLA did so, and one of the sampled companies terminated its cooperation during the on spot verification.

(117) The Commission recalls that in order to produce ceramic tableware and kitchenware, a broad range of inputs is needed. The sampled companies sourced these inputs in China. When the producers of ceramic tableware and kitchenware purchase/contract these inputs the prices they pay (and which are recorded as their costs) are clearly exposed to the same systemic distortions mentioned before. For instance, suppliers of inputs employ labour that is subject to the distortions. They may borrow money that is subject to the distortions on the financial sector/capital allocation. In addition, they are subject to the planning system which applies across all levels of government and sectors.

(118) As a consequence, not only the domestic sales prices of the product concerned cannot be used but all the input costs (including raw materials, energy, land, financing, labour, etc) are also tainted because their price formation is affected by substantial government intervention, as described in Parts A and B of the Report. Indeed, the government interventions described in relation to the allocation of capital, land, labour, energy and raw materials are present throughout the PRC. This means, for instance, that an input that in itself was produced in China by combining a range of factors of production is exposed to significant distortions. The same applies for the input to the input and so forth.

3.2.2.10. Comments after disclosure on the findings of significant distortions

(119) After disclosure, the CCCLA made several comments regarding the application by the Commission of Article 2(6a)(b) of the basic Regulation.

(120) The CCCLA first submitted that the Commission's findings on the existence of significant distortions in the Chinese ceramic tableware and kitchenware sector failed to meet the standards of objective sources and sufficient probative value, in the sense that they relied predominantly on the Commission's Report and the ThinkDesk report. The Commission's Report did not constitute an objective analysis of the economy and economic policies in China, but had only the role of facilitating the applicant's task to put forward a case of sufficient evidence on significant distortions and facilitating the Commission's task in making findings in this regard. Similarly, in the view of the CCCLA, the Think Desk report facilitated the applicant's task of preparing its request and the Commission's task of making findings regarding the existence of significant distortions in the Chinese ceramics and tableware industry. In that sense, according to the CCCLA, both documents have been prepared with a specific purpose and therefore could not be considered as objective, and were likely to omit factual elements in the analysis of the existence of significant distortions. Moreover, they were also prepared well ahead of the initiation of the expiry review, and the CCCLA submitted that the Commission did not make any new findings beyond the content of the latter documents.

(121) The Commission recalled that its Report constitutes a body of evidence placed on the file of the investigation, as provided by Article 2(6a)(c) of the basic Regulation. The Report has been published on 21 December 2017, providing an opportunity for everybody (that is not only the parties to a particular anti-dumping investigation) to submit comments, rebut, and supplement the evidence contained in the Report. To date, the Commission has received no such contribution on the Report questioning the objectivity thereof. Moreover, the CCCLA itself did not provide any specific elements rebutting the evidence or the legal conclusions contained in the Report. Accordingly, it has not been shown why the Report would lack objectivity and the claim that the Report could not be relied on in this investigation was rejected. Similarly, the CCCLA could have challenged any factual or legal element from the ThinkDesk report as any other submission from the complainant. Since the association did not give any detail why information therein was not objective, the claim that the Commission should have discarded the ThinkDesk report, was rejected.

(122) The CCCLA further took issue with the fact that both reports had been prepared well ahead of the initiation of the expiry review. It submitted that the Commission did not make any new findings beyond the content of the latter documents.

(123) The Commission disagreed with this point of view. In this investigation, it had established that the relevant evidence contained in the Report is pertinent and applicable to the current expiry review investigation and thus had taken it into account in assessing the existence of significant distortions in the PRC. Likewise, with regard to the ThinkDesk report, the Commission made use of its content to guide its research with regard to additional elements specifically relevant for the sector of ceramic tableware and kitchenware. The Commission further referred to the substantial additional evidence and research contained notably in Section 3.2.2.5 on the link between horizontal distortions in China and the sector concerned, which goes well beyond the evidence contained in both the Report and the ThinkDesk report. This research permitted the Commission to make numerous additional findings on the existence of significant distortions in the ceramic tableware and kitchenware sector. Therefore, the Commission rejected the CCCLA's claim.

(124) The CCCLA also submitted that findings of significant distortions were made without any quantitative analysis. In the CCCLA's view, the analysis of such distortions should be supported by a comparison of prices or costs reported by individual exporting producers with the prices or costs in a free market, in order to judge on the significance of distortions.

(125) Article 2(6a)(b) of the basic Regulation provides in its first sentence that ‘significant distortions are those distortions, which occur when reported prices or costs, including the cost of raw materials and energy, are not the result of free market forces because they are affected by substantial government intervention.’ The second sentence of this provision guides the Commission how it should assess the existence of significant distortions: ‘in assessing the existence of significant distortions, regard shall be had, inter alia, to the potential impact of one or more […] elements’ enumerated in the indents of Article 2(6a)(b). Consequently, as explained in recital (48) above and in compliance with Article 2(6a)(b), the Commission's assessment on the existence of such significant distortions is the outcome of an overall assessment of the relevant elements contained in the indents of that provision to make an actual price comparison between the prices or costs of an exporting producer with the undistorted prices or costs in a free market. Furthermore, as specified also in the same recital (48), the overall assessment on the existence of distortions may also take into account the general context and situation in the exporting country and the entire legal system which provides the government with substantial powers to intervene in the economy in such a way that prices and costs are not the result of the free development of market forces. The requisite standard in the legislation is one of a ‘potential’ impact of one or more of the relevant criteria listed in the indents of Article 2(6a)(b) to interfere with prices and costs, and there is no requirement whatsoever in the legislation to make an actual quantitative analysis based on a comparison between undistorted benchmark prices and costs with the exporting producers' costs and prices to make a finding of the existence of significant distortions in the country and the sector concerned. This claim was therefore rejected.

(126) Finally, the CCCLA argued that after the expiry of Section 15 of the China's Protocol of Accession to the WTO (hereinafter ‘the Protocol’), the EU should not deviate from the standard methodology in establishing the normal value, that is to use only domestic prices and costs of the exporting country, unless the ADA so permit otherwise. In light of the above, the EU should follow the standard methodology in accordance with Article 2 of the ADA. Moreover, the CCCLA also claimed that the ADA ‘does not provide for the substantive possibility to establish the existence of significant distortions’. As there is no legal basis in the ADA or in GATT 1994 for such specific action, the findings of the existence of significant distortions and, as a result of it, the construction of the normal value are not consistent with Articles 1, 2, 6.1 and 18.1 of the Anti-dumping agreement (‘ADA’).

(127) In the case at hand, the Commission applied the relevant rules contained in Article 2(6a) of the basic Regulation. The EU legislator adopted these rules with full regard to the EU's obligations under WTO law. The Commission noted that there is no absolute rule in WTO law to always construct normal value on the basis of domestic costs and prices. Furthermore, the Commission disagreed with the view that Section 15 of the Protocol would no longer be relevant for dumping investigations concerning China and recalled that there is an ongoing litigation in the WTO dispute settlement system concerning that matter, in which it had defended that view with reference to the wording of lit. (d), its purpose and the negotiation history of that provision. Consequently, the Commission rejected those claims.

3.2.2.11. Conclusion

(128) The analysis laid out in sections 3.2.2.2. to 3.2.2.9., which includes an examination of all the available evidence relating to China's intervention in its economy in general as well as in the ceramic sector (including the product under review) showed that prices or costs, including the costs of raw materials, energy and labour, are not the result of free market forces because they are affected by substantial government intervention within the meaning of Article 2(6a)(b) of the basic Regulation as shown by the actual or potential impact of one or more of the relevant elements listed therein. On that basis, and in the absence of any cooperation from the GOC, the Commission concluded that it is not appropriate to use domestic prices and costs to establish normal value in this case.

(129) Consequently, the Commission proceeded to construct the normal value exclusively on the basis of costs of production and sale reflecting undistorted prices or benchmarks, that is, in this case, on the basis of corresponding costs of production and sale in an appropriate representative country, in accordance with Article 2(6a)(a) of the basic Regulation, as discussed in the following section.

3.2.3. Representative country

3.2.3.1. General remarks

(130) Having determined that significant distortions affect prices and / or costs in the Chinese ceramic tableware and kitchenware sector, pursuant to Article 2(6a)(b) of the basic Regulation, the Commission constructed the normal value on the basis of costs of production and sale in an appropriate representative country, in accordance with Article 2(6a)(a) of the basic Regulation.

(131) The choice of the representative country was based on the following criteria: (1) A level of economic development similar to the PRC. For this purpose, the Commission used countries with a gross national income per capita similar to the PRC on the basis of the database of the World Bank; (116) (2) Production of the product concerned in that country; (3) Availability of relevant public data in that country. (4) Where there is more than one possible representative country, preference shall be given, where appropriate, to the country with an adequate level of social and environmental protection.

(132) As mentioned in recital (31), in the Note of 18 July, the Commission informed interested parties that it had identified three possible representative countries: Brazil, Thailand and Turkey and invited interested parties to comment and suggest other countries. Both the CCCLA and the applicant provided a number of comments on the possible representative countries however none of them proposed another country.

3.2.3.2. A level of economic development similar to the PRC

(133) Brazil, Thailand and Turkey are all classified as countries with a similar level of economic development as the PRC, meaning they are all classified as ‘upper-middle income’ countries by the World Bank.

(134) CCCLA commented (117) that in 2017 the GNI per capita of Turkey was significantly higher than that of China or Brazil. Similarly, the applicant also noted (118) that the 2016 GDP per capita in Brazil was very similar to that of China while the Turkish GDP per capita was significantly higher. Hence, both parties claimed that this criterion speaks against Turkey.

(135) The basic Regulation refers to an ‘appropriate country with a similar level of economic development’. Consequently, the basic Regulation does not direct the Commission to choose the country with the closest GNI or GDP per capita level to that of China. Rather, the relevant criterion is the similarity of the level of economic development. In order to establish such similarity, it is appropriate to use the upper-middle income classification by the World Bank for the relevant period because this classification is based on several objective economic criteria when identifying a number of potentially suitable countries with a similar level of development. As all three countries were included in the same category of the World Bank database, they were all considered to meet the criterion laid down in Article 2(6a)(a), first indent, of the basic Regulation. Thus, the Commission concluded that all three countries equally fulfilled this criterion and therefore the comment was rejected.

3.2.3.3. Production of the product under review in the representative country and availability of relevant public data in the representative country

(136) Practically all countries of the world produce some quantities of the product under review. Following the analysis of the available data and in particular data from the Global Trade Atlas (‘GTA’) (119) and Orbis Bureau van Dijk (‘Orbis’), (120) the Commission identified Brazil, Thailand and Turkey as possible representative countries for this investigation.

(137) In its comments, the CCCLA expressed its concern regarding the big differences between the average import prices for the factors of production reported by Brazil, Thailand the Turkey. It alleged that these differences are mainly due to the quantity of imports. As a rule, lower import quantities attracted higher prices. The CCCLA also expressed doubts on the accuracy of the import prices expressed at 6-digit Harmonised System (HS) code level and invited the Commission to use higher, 8-digit level codes. With regard to availability of financial data the CCCLA noted that the profit and SG&A of Turkey and Brazil are based on only one or two companies and therefore may be influenced by occasional factors (such as sale of branded products), while the figures for Thailand are based on averages of 8 companies. Thus, CCCLA argued that Thailand should be chosen.

(138) The applicant on the other hand argued that Brazil should be used as representative country. It claimed that two out of the eight Thai companies identified by the Commission did not seem to produce the product under review and that there was no recent financial data available for Thailand. The applicant also mentioned that in the original investigation a Thai producer could not provide data at sufficient level of detail. The applicant argued that the selling, general and administrative expenses (‘SG&A’) and profit of the Brazilian producer proposed in the review request was most in line with the SG&A of the Union producers and the profits they would expect to achieve in the absence of dumped imports. The applicant also noted that the average SG&A and profit figures of the Thai producers were too low and that from two of them the profit levels reported were below that of the target profit established by the original investigation. The applicant stated that the Brazilian producer proposed by it was able to prepare and submit the requested cost information.

(139) In response to these claims, the Commission noted that differences in average import prices, as such, do not mean that the data is unreliable. As long as the import quantities of the factors of production are sufficiently representative and there are no other specific circumstances rendering them unrepresentative or unsuitable, there is no objective reason to exclude them or, any of the proposed countries. As far as the level of classification is concerned, the Commission aims at using the most appropriate and detailed level as possible