Opinion of Advocate General Tanchev delivered on 3 October 2018.

• Jurisdiction: European Union
• Court: Court of Justice (European Union)
• ECLI: ECLI:EU:C:2018:793
• Docket Number: C-236/17
• Date: 03 October 2018
• Procedure Type: Recurso de casación - infundado

OPINION OF ADVOCATE GENERAL

TANCHEV

delivered on 3 October 2018(1)

Case C‑236/17 P

Canadian Solar Emea GmbH

Canadian Solar Manufacturing (Changshu), Inc.

Canadian Solar Manufacturing (Luoyang), Inc.

CSI Cells Co. Ltd

CSI Solar Power (China), Inc.

v

Council of the European Union

(Appeal — Dumping — Imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China — Definitive duties — Regulation (EU) No 1168/2012 — Immediate application — Causal link — Other known factors — Level of the anti-dumping duty)

Table of contents

I. Legal framework

A. The basic regulation

B. Regulation No 1168/2012

II. Background to the proceedings

III. Proceedings before the General Court and judgment under appeal

IV. Proceedings before the Court of Justice and forms of order sought

V. Assessment of the grounds of appeal

A. Third ground of appeal

1. Arguments of the parties

2. Assessment

(a) Admissibility

(b) Substance

(1) Introduction

(2) The first part of the third ground of appeal

(3) The second part of the third ground of appeal

B. Fourth ground of appeal

1. Arguments of the parties

2. Assessment

(a) Admissibility

(b) Substance

(1) The first part of the fourth ground of appeal

(i) Introduction

(ii) Should the anti-dumping duty offset only injury attributed to the dumped imports, not injury attributed to other known factors?

(iii) Did the General Court hold, in the judgment under appeal, that in setting the amount of the anti-dumping duty the institutions are required to take account of their findings in the non-attribution analysis?

(2) The second part of the fourth ground of appeal

VI. Costs

VII. Conclusion

1. By this appeal, Canadian Solar Emea GmbH (‘CSE’), Canadian Solar Manufacturing (Changshu), Inc. (‘CSM (Changshu)’), Canadian Solar Manufacturing (Luoyang), Inc. (‘CSM (Luoyang)’), CSI Cells Co. Ltd (‘CSI Cells’) and CSI Solar Power (China), Inc. (‘CSI Solar Power’) (collectively ‘Canadian Solar’ or ‘the appellant’) (2) request the Court to set aside the judgment of the General Court (3) by which the latter dismissed the action for the annulment of Council Implementing Regulation (EU) No 1238/2013 (‘the regulation at issue’). (4)

2. This appeal raises, in particular, a procedural issue, namely the immediate application of Regulation (EU) No 1168/2012, (5) which amended Article 2(7)(c) of Council Regulation (EC) No 1225/2009 (‘the basic regulation’) (6) to the effect that, where an anti-dumping investigation concerns imports from a non-market economy country and a producer subject to that investigation submits a claim for market economy treatment (an ‘MET claim’), the time limit by which a determination must be made on that claim (an ‘MET determination’) is extended from three months to eight months after the initiation of the investigation. This appeal also raises a substantive question, namely whether, where factors other than the dumped imports contribute to the injury suffered by EU industry, the amount of the anti-dumping duty must be set at a level where it offsets only the injury attributed to the dumped imports.

I. Legal framework

A. The basic regulation

3. Article 2(7) of the basic regulation, headed ‘Determination of dumping’, provides:

‘(a) …

(b) In anti-dumping investigations concerning imports from the People’s Republic of China, Vietnam and Kazakhstan and any non-market-economy country which is a member of the WTO at the date of the initiation of the investigation, normal value shall be determined in accordance with paragraphs 1 to 6, if it is shown, on the basis of properly substantiated claims by one or more producers subject to the investigation and in accordance with the criteria and procedures set out in subparagraph (c), that market economy conditions prevail for this producer or producers in respect of the manufacture and sale of the like product concerned. When this is not the case, the rules set out under subparagraph (a) shall apply.

(c) A claim under subparagraph (b) must be made in writing and contain sufficient evidence that the producer operates under market economy conditions, that is if:

– decisions of firms regarding prices, costs and inputs, including for instance raw materials, cost of technology and labour, output, sales and investment, are made in response to market signals reflecting supply and demand, and without significant State interference in this regard, and costs of major inputs substantially reflect market values,

– firms have one clear set of basic accounting records which are independently audited in line with international accounting standards and are applied for all purposes,

– the production costs and financial situation of firms are not subject to significant distortions carried over from the former non-market economy system, in particular in relation to depreciation of assets, other write-offs, barter trade and payment via compensation of debts,

– the firms concerned are subject to bankruptcy and property laws which guarantee legal certainty and stability for the operation of firms, and

– exchange rate conversions are carried out at the market rate.

A determination whether the producer meets the abovementioned criteria shall be made within three months of the initiation of the investigation, after specific consultation of the Advisory Committee and after the Community industry has been given an opportunity to comment. This determination shall remain in force throughout the investigation.’

4. Article 3 of the basic regulation, headed ‘Determination of injury’, states:

‘…

6. It must be demonstrated, from all the relevant evidence presented in relation to paragraph 2, that the dumped imports are causing injury within the meaning of this Regulation. Specifically, this shall entail a demonstration that the volume and/or price levels identified pursuant to paragraph 3 are responsible for an impact on the Community industry as provided for in paragraph 5, and that this impact exists to a degree which enables it to be classified as material.

7. Known factors other than the dumped imports which at the same time are injuring the Community industry shall also be examined to ensure that injury caused by these other factors is not attributed to the dumped imports under paragraph 6. Factors which may be considered in this respect include the volume and prices of imports not sold at dumping prices, contraction in demand or changes in the patterns of consumption, restrictive trade practices of, and competition between, third country and Community producers, developments in technology and the export performance and productivity of the Community industry.

…’

5. According to Article 9(4) of the basic regulation, headed ‘Termination without measures; imposition of definitive duties’:

‘Where the facts as finally established show that there is dumping and injury caused thereby, and the Community interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed by the Council, acting on a proposal submitted by the Commission after consultation of the Advisory Committee. The proposal shall be adopted by the Council unless it decides by a simple majority to reject the proposal, within a period of one month after its submission by the Commission. Where provisional duties are in force, a proposal for definitive action shall be submitted no later than one month before the expiry of such duties. The amount of the anti-dumping duty shall not exceed the margin of dumping established but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Community industry.’

B. Regulation No 1168/2012

6. Article 1 of Regulation No 1168/2012 provides:

‘Regulation (EC) No 1225/2009 is hereby amended as follows:

(1) Article 2(7) is amended as follows:

(a) in the penultimate sentence of subparagraph (c) the words “shall be made within three months of the initiation of the investigation” are replaced by the words “shall normally be made within seven months of, but in any event not later than eight months after, the initiation of the investigation”;

(b) the following subparagraph is added:

“(d) When the Commission has limited its examination in accordance with Article 17, a determination pursuant to subparagraphs (b) and (c) of this paragraph shall be limited to the parties included in the examination and any producer that receives individual treatment pursuant to Article 17(3).”;

…’

7. According to Article 2 of Regulation No 1168/2012:

‘This Regulation shall apply to all new and to all pending investigations as from 15 December 2012.’

II. Background to the proceedings

8. CSM (Changshu), CSM (Luoyang), CSI Cells and CSI Solar Power are exporting producers of the product concerned. CSE imports the product concerned into the European Union, from the abovementioned and other suppliers.

9. On 6 September 2012, the Commission initiated an anti-dumping proceeding with regard to imports of crystalline silicon photovoltaic modules and key components originating in China. (7)

10. In view of the potentially large number of exporting producers in the country concerned involved in the proceeding, reference was made in Section 5.1(a) of the notice of initiation to the possibility that the sampling technique would be used, in accordance with Article 17 of the basic regulation. On 21 September 2012 Canadian Solar provided the Commission with the information for the selection by the Commission of a sample of exporting producers. The sample of exporting producers selected by the Commission consisted of seven groups of companies. (8) Canadian Solar was not selected for that sample.

11. On 13 November 2012 Canadian Solar submitted an MET claim pursuant to Article 2(7)(b) of the basic regulation.

12. On 12 December 2012 Regulation No 1168/2012 was adopted. (9)

13. On 3 January 2013 the Commission informed Canadian Solar that its...