15.9.2023
EN
Official Journal of the European Union
L 228/219
(123) Moreover, with respect to the ‘Guiding Opinions on promoting the high-quality development of the petrochemical and chemical industry during the 14th Five Year Plan’, CCCMC and Xinjiang XLX submitted that the Commission failed to take into account that (i) this document is a guidance document, not a binding regulation setting out detailed obligations or rules for the sectors concerned, as well as that (ii) it includes aims or goals – goals such as ‘give full play to the decisive role of the market in resource allocation, better play the role of the government’ or ‘create a market-oriented, legalized, and internationalized business environment’ – which are at odds with the Commission’s conclusions on distortions.
Similarly, with respect to the FYPs quoted by the Commission, CCCMC and Xinjiang XLX contested the Commission’s interpretation of the system of plans in China, pointing out that those FYPs do not show that public authorities would drive binding decisions but rather that the FYPs seek to clarify the respective responsible parties whereas the role of governments is separately specified to be to ‘create a favourable policy environment, institutional environment, and legal environment’ – which is the role of governments everywhere including in the EU.
In the same vein, CCCMC and Xinjiang reiterated the argument that the Guiding Opinions on promoting the high-quality development of the petrochemical and chemical industry during the 14th FYP leave it to the Chinese enterprises to take the appropriate actions to transform and upgrade the sector, in a fashion similar to the EU industrial policies.
Further, CCCMC and Xinjiang XLX submitted that the Commission did not address the argument raised earlier, namely that according to the Appellate Body’s finding in US – Countervailing Measures, the existence of price distortion resulting from government intervention has to be established and adequately explained by the investigating authority in its report.
CCCMC and Xinjiang XLX understand this to be a requirement for the Commission to bring forward current factual data and detailed analysis of the alleged Chinese government intervention which results in consequent market effects and bears on behaviour at the producer level.
Finally, CCCMC and Xinjiang XLX emphasized their position that Commission is bound to produce evidence of specific governmental exercise of any alleged powers to intervene in the melamine market and which has resulted in actual and demonstrable distortion of the respective melamine producers’ pricing and that the Commission’s references to Chinese government plans, guiding opinions or other Chinese government policy initiatives cannot be equated to actual government intervention.
(124) These arguments could not be accepted.
As to the Commission’s reliance on the Report and the fact that it was published in 2017, the Commission reiterates its position explained in recital (116).
Moreover, the Commission recalls that a determination concerning the presence of significant distortions pursuant to Article 2(6a) of the basic Regulation is not conditional upon the existence of the Report, let alone on the date of its publication.
The Commission notes further that the basic axioms of the Chinese economy, such as the paradigm of Socialist Market Economy, the system of planning or the CCP leadership over the economy – combined with the Party’s presence within individual market operators entailing the power to interfere with managerial decisions – have not changed since the publication of the Report, other than being arguably even more distinct.
While the findings of the Report therefore remain largely valid, the Commission has in any event supplemented them in the present investigation by further evidence, as described in detail for example in recitals (76), (77), (79), (80) and (84) – (86) above.
In view of this, also the argument of CCCMC and Xinjiang XLX concerning the Commission’s obligation to update the Report in line with Article 2(6a)(c) of the basic Regulation is groundless, as the Commission has indeed examined the relevant circumstances concerning the presence of significant distortions specifically for the purposes of this investigation, taking into account the most recent evidence available (82).
(125) As to the parallels which CCCMC and Xinjiang XLX draw between the Chinese policy documents and the EU’s industrial strategies, the Commission notes that the parties do not adduce any additional arguments, other than insisting on the alleged relevance of the EU’s industrial policies in the context of the assessment of significant distortions pursuant Article 2(6a) of the basic Regulation in China.
Consequently, the Commission reiterates its position expressed already in recital (115).
(126) Concerning the set of arguments on to what extent the Chinese policy documents referred to by the Commission, such as those quoted in recitals (84) – (86) above, are guidance document, how much the nature of the Chinese planning system and economic setup results in the public authorities binding decisions and to what extent the relevant policy document leave it to individual enterprises to take appropriate actions, the Commission notes that CCCMC and Xinjiang XLX disregard the unequivocal requirements contained in the relevant Chinese policy (82) Such approach was confirmed by the General Court in its judgement of 21 June 2023, Guangdong Haomei New Materials and Guangdong King Metal Light Alloy Technology v Commission, T-326/21, EU:T:2023:347, para.
104.