Wuxi Suntech Power v Commission (Dumping - Subsidies - Imports of crystalline silicon photovoltaic modules and cells originating in or consigned from China - Judgment) [2024] EUECJ T-403/20 (20 November 2024)

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( Dumping - Subsidies - Imports of crystalline silicon photovoltaic modules and cells originating in or consigned from China - Definitive anti-dumping and countervailing duties - Undertaking - Invalidation of undertaking invoices - Legal basis - Article 8(9) of Regulation (EU) 2016/1036 - Article 13(9) of Regulation (EU) 2016/1037 - Implementing Regulations (EU) No 1238/2013 and No 1239/2013 - Implementing Regulations (EU) 2017/367 and 2017/366 - Manifest error of assessment )

Wuxi Suntech Power Co. Ltd, established in Wuxi (China), represented by R. Antonini, E. Monard and B. Maniatis, lawyers,

European Commission, represented by R. Pethke and T. Maxian Rusche, acting as Agents,

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

composed of A. Marcoulli, President, J. Schwarcz (Rapporteur) and W. Valasidis, Judges,

having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,

1 By its action based on Article 263 TFEU, the applicant, Wuxi Suntech Power Co. Ltd, seeks the annulment of Commission Implementing Regulation (EU) 2020/444 of 25 March 2020 invalidating invoices [that it] issued … in breach of the undertaking repealed by Implementing Regulation (EU) 2017/1570 (OJ 2020 L 92, p. 10; ‘the contested regulation’).

2 The applicant manufactures crystalline silicon photovoltaic modules in the People’s Republic of China that it exports to the European Union.

3 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).

4 On 2 August 2013, the Commission adopted Decision 2013/423/EU 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 price undertaking (‘the undertaking’) was offered by the China Chamber of Commerce for Import and Export of Machinery and Electronic Products (‘the CCCME’) on behalf of the applicant and a number of other Chinese exporting producers.

5 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).

6 On the same day, 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).

7 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 undertaking is withdrawn.

8 On 4 December 2013, the Commission adopted 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 2013 L 325, p. 214).

9 On 10 September 2014, the undertaking was amended by Commission Implementing Decision 2014/657/EU accepting a proposal 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 (OJ 2014 L 270, p. 6).

10 The anti-dumping duties were extended by Commission Implementing Regulation (EU) 2017/367 of 1 March 2017 imposing a definitive anti-dumping 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 following an expiry review pursuant to Article 11(2) of Regulation (EU) 2016/1036 of the European Parliament and of the Council and terminating the partial interim review investigation pursuant to Article 11(3) of Regulation (EU) 2016/1036 (OJ 2017 L 56, p. 131).

11 The countervailing duties were extended by Commission Implementing Regulation (EU) 2017/366 of 1 March 2017 imposing definitive countervailing duties on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China following an expiry review pursuant to Article 18(2) of Regulation (EU) 2016/1037 of the European Parliament and of the Council and terminating the partial interim review investigation pursuant to Article 19(3) of Regulation (EU) 2016/1037 (OJ 2017 L 56, p. 1).

12 The total ad valorem duty applicable to imports of photovoltaic cells and modules originating in China and manufactured and exported by the applicant, set by Implementing Regulations No 1238/2013 and No 1239/2013 and, after the expiry review investigations, by Implementing Regulations 2017/367 and 2017/366, is 46.3%, namely an anti-dumping duty of 41.4% (Article 1(2) of Implementing Regulation No 1238/2013, replaced by Article 1(2) of Implementing Regulation 2017/367), plus a countervailing duty of 4.9% (Article 1(2) of Implementing Regulation No 1239/2013, replaced by Article 1(2) of Implementing Regulation 2017/366).

13 Provisions equivalent to those referred to in paragraph 7 above were laid down, following the expiry review investigations, in Implementing Regulations 2017/366 and 2017/367.

14 In 2017, the undertaking was replaced by an obligation to pay a duty which amounted to the difference between the variable minimum import price and the net free-at-Union-frontier price, before duty, if the latter was lower than the former, and which, in any event, was to be no higher than 41.4% for the anti-dumping duty and 4.9% for the countervailing duty (Article 1(1) and Article 3(1) of Commission Implementing Regulation (EU) 2017/1570 of 15 September 2017 amending Implementing Regulation 2017/366 and Implementing Regulation 2017/367 imposing definitive countervailing and anti-dumping duties on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China and repealing Implementing Decision 2013/707 (OJ 2017 L 238, p. 22)). Implementing Regulation 2017/1570 entered into force on 1 October 2017.

15 By letter of 12 July 2019, the Commission informed the applicant that it was proposing to invalidate the invoices issued in breach of the undertaking by the applicant, and disclosed the essential facts and considerations forming the basis of that proposal. A general disclosure document was annexed to that letter.

16 In the general disclosure document, the Commission stated that the applicant had infringed several commitments made in the undertaking by failing to report re-sales made by its related companies Suntech Europe France, Suntech Power Italy Co., Srl and Suntech Power Deutschland GmbH to the first unrelated customers in the European Union, and that, on that basis, it proposed (i) to invalidate the undertaking invoices which accompanied the sales made by the applicant to those three companies, namely invoices issued between 13 March 2014 and 19 September 2014, and (ii) to 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.

17 By email of 29 July 2019, the applicant submitted comments on the general disclosure document.

18 On 28 August 2019, a hearing was held before the Commission services at the request of the applicant.

19 On 16 September 2019, the general disclosure document was supplemented by a first additional specific disclosure document, in respect of which the applicant submitted comments by email of 26 September 2019.

20 On 26 November 2019, the Commission sent to the applicant a second additional specific disclosure document, in respect of which the applicant submitted comments by email of 20 January 2020.

21 On 7 February 2020, a second hearing took place at the request of the applicant.

22 The Commission confirmed its findings in the contested regulation, Article 1 of which is worded as follows:

2. The anti-dumping and countervailing duties due at the time of acceptance of the customs declaration for release into free circulation under Article 3(2)(b) of Implementing Regulation … No 1238/2013, Article 2(2)(b) of Implementing Regulation … 2017/367, Article 2(2)(b) of Implementing Regulation … No 1239/2013, and Article 2(2)(b) of Implementing Regulation … 2017/366 shall be collected …’

26 The first plea alleges that the Commission made a manifest error of assessment and infringed 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’), and in particular paragraph 9 of those provisions, when it took the view that the applicant had infringed the terms of the undertaking. The second plea alleges that the Commission acted illegally by declaring the invoices at issue invalid and ordering that duties be collected on them, even though the powers that it relied upon to do so had either expired or been revoked. The third plea alleges that the Commission infringed Article 8(1), (9) and (10) and Article 10(5) of the basic anti-dumping regulation, and Article 13(1), (9) and (10) and Article 16(5) of the basic anti-subsidy regulation, in that it invalidated undertaking invoices and then instructed customs authorities to collect duties retroactively.

27 By letter of 7 April 2023, the applicant stated that it was withdrawing its third plea, given that that plea was substantially similar to the questions raised by Jiangsu Seraphim Solar System Co. Ltd in the cases giving rise to the judgment of 16 March 2023, Commission v Jiangsu Seraphim Solar System and Council v Jiangsu Seraphim Solar System and Commission (C‑439/20 P and C‑441/20 P, EU:C:2023:211).

The first plea, relating to an infringement of the terms of the undertaking

28 The applicant submits that the Commission made a manifest error of assessment of the facts and infringed Article 8 of the basic anti-dumping regulation and Article 13 of the basic anti-subsidy regulation, and in particular paragraph 9 of those two provisions, by taking the view, in the contested regulation, that the applicant had infringed several commitments made in the undertaking by ceasing to report, as from 11 March 2014, re-sales made by its related companies Suntech Europe France, Suntech Power Italy and Suntech Power Deutschland to the first unrelated customers in the European Union.

29 According to the applicant, those three companies were no longer related to it as from that date following an internal restructuring, of which it duly notified the Commission in December 2013 and by email of 6 January 2014. Therefore, sales to those companies became, as from 11 March 2014, direct sales to the first independent customers in the European Union and the applicant was no longer required, from that date, to report re-sales made by those third companies on the basis of the undertaking.

30 The applicant also claims that, in the contested regulation, the Commission misinterpreted the undertaking or distorted the facts of the present case, or both, by taking the view that, first, the applicant should have treated Suntech Europe France, Suntech Power Italy and Suntech Power Deutschland as related companies as long as the text of the undertaking had not been modified; secondly, the applicant did not duly notify the Commission of a change in affiliation, since it did not contact the competent service in accordance with the undertaking; thirdly, the applicant never notified a change in affiliation, but requested a name change; and, fourthly, even assuming that the notification of the change in structure was made, it was not made until 22 May 2014.

31 The applicant infers from this that it did not infringe either the letter or the spirit of the undertaking and adds that, by not responding for almost four years following the exchanges concerning the change in its corporate structure, the Commission created a legitimate expectation on its part that its notification had been accepted.

33 In that regard, it should be noted that, under clause 2 of the undertaking, among the four elements falling within its scope is the obligation to submit detailed sales reports to the Commission in order to enable that institution to monitor compliance with the undertaking (clause 2.5).

34 For that purpose, Annex II to the undertaking, which, in accordance with clause 9.6 thereof, constitutes an integral part of the undertaking, contains a number of model tables to be completed by the companies concerned, depending on the type of report to be submitted. As regards Report A, namely the general report, it is stated in that Annex II that it is to be completed with information concerning, inter alia, ‘re-sales’ in the European Union of the goods in question. In that regard, it is apparent from clause 1 of the undertaking that a ‘re-sale invoice’ is defined as a sales invoice issued to the first independent customer in the European Union by a related party in the European Union for the product covered or the product concerned, and that the words ‘related party in the [European] Union’ refer to companies listed in Annex XI. It follows that all re-sales of goods covered and concerned made by related companies, as listed in Annex XI to the undertaking, are to be reported to the Commission.

35 In the present case, the applicant does not dispute that, at the time when the invoices in question were issued, namely between 13 March 2014 and 19 September 2014, the undertaking repealed on 1 October 2017 constituted the applicable legal framework. Nor does the applicant dispute that the entities Suntech Europe France, Suntech Power Italy and Suntech Power Deutschland have always been included in Annex XI to the undertaking as companies related to it. It follows that, under the terms of the undertaking, and until that undertaking was repealed, the applicant was required to report the re-sales made by Suntech Europe France, Suntech Power Italy and Suntech Power Deutschland, listed in Annex XI to the undertaking as companies related to it.

36 Furthermore, it must be stated that, even if the applicant had notified the Commission in December 2013 and by email of 6 January 2014 of an impending change in its corporate structure, from which it was to follow that Suntech Europe France, Suntech Power Italy and Suntech Power Deutschland would no longer be related companies, that notification could not have the effect of extinguishing, in respect of the applicant from the date on which that change allegedly occurred, the obligation to report the re-sales made by the companies listed as being related to it in Annex XI to the undertaking. It is apparent from clause 5.16 of the undertaking that any changes to the corporate structure of a company which is a party to the undertaking may give rise to the need to modify certain aspects of that undertaking. The view must be taken that, as long as such modification of the undertaking has not taken place, that undertaking remains applicable as it stands.

37 Lastly, the view must also be taken that, in order to avoid any risk of abuse or fraud, the Commission, once it has been duly notified of a change in the corporate structure of a company which is a party to the undertaking, must be able to carry out the checks necessary to verify that that change has indeed taken place and to satisfy itself that the companies that until then were related to that party are in fact no longer related to it. In the present case, it must be stated, first of all, that it is apparent from recital 37 of the contested regulation that the applicant did not submit evidence of the change in its corporate structure until 2019, that is to say, long after 19 September 2014, namely the date of the last invoice at issue. Next, the Commission informed the applicant, prior to the adoption of the contested regulation, that it had discovered several indications that the change in corporate structure had not actually taken place, with the result that Suntech Europe France, Suntech Power Italy and Suntech Power Deutschland might still have to be regarded as companies related to the applicant. This illustrates that an in-depth investigation may be necessary, with the result that a company which is a party to the undertaking cannot be allowed unilaterally to cease applying it, following a change in factual circumstances that has not been verified by the Commission.

38 It follows that the applicant has not succeeded in demonstrating that the Commission made a manifest error of assessment or that it infringed Article 8 of the basic anti-dumping regulation and Article 13 of the basic anti-subsidy regulation by finding, in the contested regulation, that the applicant had infringed the undertaking by ceasing, on its own initiative, to declare the re-sales made after 11 March 2014 by Suntech Europe France, Suntech Power Italy and Suntech Power Deutschland.

39 Lastly, given that it follows from the foregoing that a notification to the Commission of the alleged change in its corporate structure, even if it did take place, did not allow, in any event, the applicant to cease unilaterally to comply with the undertaking as long as the text of the undertaking had not been modified to take account of that change, it is not necessary to examine whether the Commission misinterpreted the undertaking or distorted the facts of the present case by taking the view that that change was not properly notified to it before 22 May 2014. For that same reason, it is also not necessary to examine whether the Commission created a legitimate expectation on the part of the applicant that the notification of an impending change in its corporate structure had been accepted.

The second plea, relating to the Commission’s competence to adopt the contested regulation

41 The applicant submits that, according to Article 1 of the contested regulation, the Commission declared the invoices at issue invalid and ordered that the duties due at the time of acceptance of the undertaking be collected ‘under the powers’ contained in Article 3(2)(b) of Implementing Regulation No 1238/2013, Article 2(2)(b) of Implementing Regulation 2017/367, Article 2(2)(b) of Implementing Regulation No 1239/2013 and Article 2(2)(b) of Implementing Regulation 2017/366. However, the two implementing regulations of 2013 expired, in its view, on 7 December 2015, under Article 5 thereof, and those of 2017 on 3 September 2018, under Article 6 thereof.

42 Furthermore, even before the expiry of those implementing regulations of 2017, the provisions in question were repealed by Article 1(4) and (5) and Article 3(3) and (4) of Implementing Regulation 2017/1570. Consequently, in order to invalidate the undertaking and order the collection of duties, the Commission relied illegally, in the contested regulation, on powers which no longer existed and, in so doing, acted without a legal basis and therefore ultra vires.

44 It should be noted that, as is apparent from paragraph 118 of the judgment of 16 March 2023, Commission v Jiangsu Seraphim Solar System and Council v Jiangsu Seraphim Solar System and Commission (C‑439/20 P and C‑441/20 P, EU:C:2023:211), the power of the EU institutions entrusted with the implementation of the basic anti-dumping and anti-subsidy regulations to require payment, following the withdrawal of acceptance of an undertaking, of the duties due in respect of the transactions covered by the invalidated undertaking invoices, as provided for, in the present case, in Article 1(2) of the contested regulation, may legitimately be based on Article 8(9) of the basic anti-dumping regulation and Article 13(9) of the basic anti-subsidy regulation. In accordance with paragraph 119 of the abovementioned judgment, the same conclusion must moreover be drawn to the extent that Article 1(1) of the contested regulation provides for the invalidation of those undertaking invoices.

45 In the present case, the Commission referred, in recital 25 of the contested regulation, to the provisions cited in paragraph 44 above, stating that it was on that basis that it had informed interested parties, including the applicant, of its intention to invalidate the undertaking invoices, giving them the opportunity to be heard and to comment. Similarly, as is apparent from recital 19 of that regulation, those provisions constituted, together with Article 8(7) and Article 14(7) of the basic anti-dumping regulation and Article 13(7) and Article 24(7) of the basic anti-subsidy regulation, the basis on which the customs authorities of a Member State submitted to the Commission evidence regarding the breach by the applicant of the undertakings. It is also in that sense that recitals 64 and 65 of the contested regulation must be understood. Lastly, recital 57 of the contested regulation refers to the definitive anti-dumping and countervailing duties imposed in accordance with Article 9(4) of the basic anti-dumping regulation and Article 14(4) of the basic anti-subsidy regulation.

46 In those circumstances, contrary to what the applicant maintains, Article 1 of the contested regulation cannot be interpreted as meaning that the Commission intended to declare the undertaking invoices at issue invalid and to collect the anti-dumping and countervailing duties due at the time of acceptance of the customs declaration for release into free circulation ‘under the powers contained’ in the provisions referred to in paragraph 41 above, which, in essence, refer to the provisions of Article 8(9) of the basic anti-dumping regulation and of Article 13(9) of the basic anti-subsidy regulation or to the corresponding provisions in the previous basic anti-dumping and anti-subsidy regulations, namely Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51) and Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Community (OJ 2009 L 188, p. 93). Thus, the provisions referred to in paragraph 41 above merely provide for the establishment of a system for the issuance of undertaking invoices, without, however, conferring powers in the sense referred to by the applicant.

47 In the light of the foregoing, the applicant’s claims that the Commission relied on powers that had expired or that had been revoked must be rejected as unfounded.

48 Consequently, the second plea must be rejected and the action must be dismissed in its entirety.

49 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

50 Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.

51 The Council shall bear its own costs, in accordance with Article 138(1) of the Rules of Procedure.

2. Orders Wuxi Suntech Power Co. Ltd to bear its own costs and to pay those incurred by the European Commission;

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Wuxi Suntech Power v Commission (Dumping - Subsidies - Imports of crystalline silicon photovoltaic modules and cells originating in or consigned from China - Judgment) [2024] EUECJ T-403/20 (20 November 2024) URL: http://www.bailii.org/eu/cases/EUECJ/2024/T40320.html Cite as: ECLI:EU:T:2024:843, EU:T:2024:843, [2024] EUECJ T-403/20

Court of Justice of the European Communities (including Court of First Instance Decisions)