(62)

CCCME’s arguments could not be accepted. First, as for the alleged circular manner of the Commission’s argumentation and the burden of proof, the Commission recalled – as already stated in recitals (53) and (55) of the provisional Regulation – that Section 3.3.1 of the provisional Regulation contains the Commission’s full assessment concerning the existence of significant distortions. The Commission failed to see any circularity in how that assessment was carried out, i.e. the Commission relying on available evidence, including the Report, and interested parties having an opportunity to comment on that evidence. Second, concerning the nature of the five year plans, while noting that the existence and nature of planning documents in the Union is not relevant in the context of the present investigation, the Commission recalled, as already explained in detail in recitals (73) and (74) of the provisional Regulation and in recital (49), the specific nature of industrial planning in China is not only comprehensive, covering virtually the entire industrial production in the country, but also directly affects the business decisions of market operators due to financial and other mechanisms, which induce such operators to comply with the five-year plans (‘FYPs’). By way of example, the Commission recalled, according to the 13th FYP ‘[a]ll local governments and government departments must work hard to organize, coordinate, and guide the implementation of this plan. We will carry out dynamic monitoring and evaluation of the implementation of this plan. […] Approval procedures related to the projects and initiatives included in this plan will be streamlined and priority will be given to them in site selection, land availability, and funding arrangements. We will ensure that auditing offices play a role in overseeing implementation’ (7). Third, concerning the alleged incompatibility of Article 2(6a) of the basic Regulation with WTO law, in particular the provisions of Article 2.2. and 2.2.1.1. ADA, as well as the findings in DS473, the Commission reiterated its view expressed in recital (54) of the provisional Regulation, as well as in recital (56), that 2(6a) of the basic Regulation is fully in line with the EU’s obligations under WTO law and that WTO law, as interpreted by the WTO Panel and the Appellate Body in DS473, allows the use of data from a third country, duly adjusted when such adjustment is necessary and substantiated. Furthermore, concerning the claim that the concept of significant distortions included in Article 2(6a) of the basic Regulation is not listed among the situations in which it is permissible to construct the normal value pursuant to Article 2.2. ADA, this argument has already been addressed in recital (43). Fourth, with respect to the individual assessment of significant distortions for each exporting producer, the Commission recalled that once it is determined that, due to the existence of significant distortions for the exporting country in accordance with Article 2(6a)(b) of the basic Regulation, it is not appropriate to use domestic prices and costs in the exporting country, the Commission may construct the normal value using undistorted prices or benchmarks in an appropriate representative country for each exporting producer according to Article 2(6a)(a) of the basic Regulation. Such determination has been made on the basis of the assessment carried out in recitals (57) to (111) of the provisional Regulation and applied individually to each exporting producer. The Commission recalled further that Article 2(6a)(a) of the basic Regulation allows the use of domestic costs only if they are positively established not to be distorted. However, there is no evidence on file demonstrating that this would be the case.