Judgments nº T-110/17 of Tribunal General de la Unión Europea, July 08, 2020

• Resolution Date: July 08, 2020
• Issuing Organization: Tribunal General de la Unión Europea
• Decision Number: T-110/17

(Dumping - Imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China - Undertakings - Admissibility - Implementing Regulation (EU) 2016/2146 - Invalidation of undertaking invoices - Temporal application of new provisions)

In Case T-110/17,

Jiangsu Seraphim Solar System Co. Ltd, established in Changzhou (China), represented by Y. Melin, lawyer,

applicant,

v

European Commission, represented by N. Kuplewatzky and T. Maxian Rusche, acting as Agents,

defendant,

supported by

Council of the European Union, represented by H. Marcos Fraile, acting as Agent, and by N. Tuominen, lawyer,

intervener,

APPLICATION based on Article 263 TFEU seeking partial annulment of Commission Implementing Regulation (EU) 2016/2146 of 7 December 2016 withdrawing the acceptance of the undertaking for two exporting producers under Implementing Decision 2013/707/EU confirming the acceptance of an undertaking offered in connection with the anti-dumping and anti-subsidy proceedings concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China for the period of application of definitive measures (OJ 2016 L 333, p. 4), in so far as it concerns the applicant,

THE GENERAL COURT (Fourth Chamber),

composed of H. Kanninen, President, J. Schwarcz (Rapporteur) and C. Iliopoulos, Judges,

Registrar: P. Cullen, Administrator,

having regard to the written part of the procedure and further to the hearing on 30 January 2019,

gives the following

Judgment

Background to the dispute

1 The applicant, Jiangsu Seraphim Solar System Co. Ltd, manufactures crystalline silicon photovoltaic modules in China and exports them to the European Union.

2 On 4 June 2013, the European Commission adopted Regulation (EU) No 513/2013 imposing a provisional anti-dumping duty on imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the People’s Republic of China and amending Regulation (EU) No 182/2013, making these imports originating in or consigned from the People’s Republic of China subject to registration (OJ 2013 L 152, p. 5).

3 By Decision 2013/423/EU of 2 August 2013 accepting an undertaking offered in connection with the anti-dumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the People’s Republic of China (OJ 2013 L 209, p. 26), the Commission accepted a price undertaking (‘the undertaking’) offered by the China Chamber of Commerce for Import and Export of Machinery and Electronic Products (‘CCCME’) on behalf of the applicant and a number of other exporting producers.

4 On 2 December 2013, the Council of the European Union adopted Implementing Regulation (EU) No 1238/2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China (OJ 2013 L 325, p. 1).

5 On 2 December 2013, the Council also adopted Implementing Regulation (EU) No 1239/2013 imposing a definitive countervailing duty on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China (OJ 2013 L 325, p. 66).

6 Article 3(2) of Implementing Regulation No 1238/2013 and Article 2(2) of Implementing Regulation No 1239/2013 provide, in the same terms, that the Commission may identify transactions for which ‘a customs debt shall be incurred at the time of acceptance of the declaration for release into free circulation’ in cases where the acceptance of the price undertaking is withdrawn.

7 By Implementing Decision 2013/707/EU of 4 December 2013 confirming the acceptance of an undertaking offered in connection with the anti-dumping and anti-subsidy proceedings concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China for the period of application of definitive measures (OJ 2013 L 325, p. 214), the Commission confirmed the acceptance of the undertaking, as amended at the request of the CCCME, on behalf of the Chinese exporting producers. On 10 September 2014, the Commission adopted Implementing Decision 2014/657/EU accepting a proposal made by a group of exporting producers together with the [CCCME] for clarifications concerning the implementation of the undertaking referred to in Implementing Decision 2013/707/EU (OJ 2014 L 270, p. 6).

8 The total ad valorem duty applicable to imports of photovoltaic cells and modules originating in China for non-sampled cooperating companies listed in Annex I to Implementing Regulation No 1238/2013 and in Annex 1 to Implementing Regulation No 1239/2013 is 47.7%. It corresponds to an anti-dumping duty of 41.3% (Article 1(2) of Implementing Regulation No 1238/2013), plus a countervailing duty of 6.4% (Article 1(2) of Implementing Regulation No 1239/2013). Imports covered by the undertaking and Implementing Decision 2013/707 are exempt from those duties under Article 3(1) of Implementing Regulation No 1238/2013 and Article 2(1) of Implementing Regulation No 1239/2013.

9 By letter of 11 October 2016, the Commission informed the applicant that it was proposing to withdraw its acceptance of the undertaking and disclosed the essential facts and considerations forming the basis of that proposal. A general disclosure document and a disclosure document specific to the applicant were annexed to that letter.

10 In the disclosure document specific to the applicant, the Commission indicated that it was proposing to withdraw its acceptance of the undertaking and informed the applicant, under heading 4 ‘Invalidation of undertaking invoices’, that it would, first, invalidate the undertaking invoices which accompanied the sales made to the importer and, second, instruct the customs authorities to recover the customs debt that would have been incurred had the applicant failed to present valid undertaking invoices when the declaration for release of the goods for free circulation was accepted.

11 By letter of 28 October 2016, the applicant submitted comments on the general disclosure document and on the Commission’s disclosure document specific to the applicant. The applicant stated, in essence, that the Commission did not have the power to invalidate the invoices or to instruct the customs authorities to collect duties as if no undertaking invoice had been presented. According to the applicant, that in fact amounted to giving retroactive effect to the withdrawal of the undertaking.

12 The Commission confirmed its position in Implementing Regulation (EU) 2016/2146 of 7 December 2016 withdrawing the acceptance of the undertaking for two exporting producers under Implementing Decision 2013/707 (OJ 2016 L 333, p. 4; ‘the contested regulation’), adopted on the basis of Article 8 of 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 (OJ 2016 L 176, p. 21; ‘the basic anti-dumping regulation’), and Article 13 of Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (OJ 2016 L 176, p. 55; ‘the basic anti-subsidy regulation’).

Procedure and forms of order sought

13 By application lodged at the Registry of the General Court on 18 February 2017, the applicant brought the present action.

14 The Commission lodged its defence at the Court Registry on 22 May 2017.

15 By document lodged at the Court Registry on 23 May 2017, the Council sought leave to intervene in support of the form of order sought by the Commission. The main parties did not submit any observations in that regard.

16 By decision of 10 July 2017, the President of the Fourth Chamber of the General Court granted the Council leave to intervene in support of the form of order sought by the Commission.

17 The Council lodged its statement in intervention on 27 July 2017.

18 By letter sent to the Court Registry on 12 September 2017, the Commission indicated that it had no observations on the statement in intervention.

19 The applicant lodged its observations on the statement in intervention at the Court Registry on 12 September 2017.

20 The applicant lodged its reply at the Court Registry on 28 July 2017.

21 The Commission lodged a rejoinder at the Court Registry on 6 October 2017. It included a request to withdraw from the case file Annex C.3 to the reply. The applicant lodged its observations on that request on 9 November 2017.

22 The applicant also submitted to the Court, after lodging the reply and before the hearing, a document designated E.1, which refers to the procedure before the Swedish national customs authorities in respect of the imports in question, which were the subject of the undertaking invoices invalidated by the Commission. The Commission had initially requested, in paragraph 14 of the observations lodged at the Court Registry on 23 January 2019, that the Court declare that annex inadmissible and remove it from the file as new evidence. At the hearing, the Commission withdrew its plea of inadmissibility.

23 The applicant claims that the Court should:

- annul Article 2 of the contested regulation in so far as it concerns the applicant;

- order the Commission, and any party which may be granted leave to intervene in support of the Commission in the course of the proceedings, to bear the costs.

24 The Commission contends that the Court should:

- principally, dismiss the action as inadmissible;

- in the alternative, dismiss the single plea in law as...