# EUR-Lex - 52013PC0759 - EN

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# 52013PC0759

**Proposal for a COUNCIL IMPLEMENTING REGULATION 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 /* COM/2013/0759 final - 2013/0369 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

Grounds for and objectives of the proposal

This proposal concerns the application of
Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against
dumped imports from countries not members of the European Community ('the basic
Regulation'), and in particular Article 9 and 14(1) thereof on imports of crystalline silicon photovoltaic modules and
key components (i.e. cells) originating in or consigned from the People's
Republic of China.

General context

This proposal is made in the context of the
implementation of the basic Regulation and is the result of an investigation
which was carried out in line with the substantive and procedural requirements
laid out in the basic Regulation.

Existing provisions in the area of the
proposal

On 6 September 2012, the European Commission
(‘the Commission’) initiated an anti-dumping proceeding concerning imports of
crystalline silicon photovoltaic modules and key components (i.e. cells and
wafers) originating in the People’s Republic of China.

On 1 March 2013, the Commission adopted
Regulation No 182/2013 making 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 subject to registration.

On 4 June 2013, the Commission adopted Regulation
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. This Regulation
was subsequently amended by Commission Regulation No 748/2013 of 2 August 2013.

By Decision 2013/423/EU of 2 August 2013, the
Commission accepted 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.

Consistency with other policies and
objectives of the Union

Not applicable.

2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS

Consultation of interested parties

Interested parties concerned by the proceeding
have had the possibility to defend their interests during the investigation, in
line with the provisions of the basic Regulation.

Collection and use of expertise

There was no need for external expertise.

Impact assessment

This proposal is the result of the
implementation of the basic Regulation.

The basic Regulation does not provide for a
general impact assessment but contains an exhaustive list of conditions that
have to be assessed.

3.           LEGAL ELEMENTS OF THE
PROPOSAL

Summary of the proposed action

The Commission imposed provisional anti-dumping
duties 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 subsequently accepted an undertaking offered in
connection with these imports.

The attached proposal for a Council Regulation
is based on the definitive findings which have confirmed the existence of
dumping causing injury, and the fact that the imposition of measures is not
against the overall Union interest. Although the product scope has been amended
at the definitive stage (by excluding wafers from the product scope) and the
final duty rates have been slightly revised, the provisional findings were overall
confirmed. The undertaking is foreseen to apply during the period of validity
of provisional and definitive measures.

It is therefore proposed that the Council adopts
the attached proposal for a Regulation which should be published no later than
5 December 2013.

Legal basis

This proposal concerns the application of
Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against
dumped imports from countries not members of the European Community.

Subsidiarity principle

The proposal falls under the exclusive
competence of the European Union. The subsidiarity principle therefore does not
apply.

Proportionality principle

The proposal complies with the proportionality
principle for the following reasons:

The form of action is described in the
above-mentioned basic Regulation and leaves no scope for national decision.

Indication of how financial and administrative
burden falling upon the Union, national governments, regional and local
authorities, economic operators and citizens is minimized and proportionate to
the objective of the proposal is not applicable.

Choice of instruments

Proposed instruments: regulation.

Other means would not be adequate for the
following reason:

The basic Regulation does not provide for
alternative options.

4.           BUDGETARY IMPLICATION

The proposal has no implication for the Union
budget.

2013/0369 (NLE)

Proposal for a

COUNCIL IMPLEMENTING REGULATION

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

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European
Union,

Having regard to Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of
the European Community[1] (‘the basic Regulation’), and in particular Article 9(4) and 14(1)
thereof,

Having regard to the proposal submitted by the European Commission,
after consulting the Advisory Committee,

Whereas:

A.        PROCEDURE

1.           Provisional
Measures

(1)       The
European Commission (‘the Commission’) by Regulation (EU) No 513/2013[2] (‘the provisional Regulation’) imposed 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 (‘the PRC’ or the ‘country concerned’).

(2)       The investigation was
initiated following a complaint lodged on 25 July 2012 by EU ProSun (‘the
complainant’) on behalf of producers representing more than 25 % of the total
Union production of crystalline silicon photovoltaic ('PV') modules and key
components. The complaint contained prima facie evidence of dumping of the said
product and of material injury resulting therefrom, which was considered
sufficient to justify the initiation of an investigation.

2.           Registration

(3)       As
mentioned in recital (3) to the provisional Regulation, following a request by
the complainant supported by the required evidence the Commission adopted on 1 March
2013 Regulation (EU) No 182/2013[3] making
imports of crystalline silicon PV modules and key components (i.e. cells and
wafers) originating in or consigned from the People’s Republic of China subject
to registration as of 6 March 2013. The provisional Regulation ceased the
registration of imports for the purpose of the anti-dumping investigation in
accordance with Article 14(5) of the basic Regulation since a provisional
anti-dumping duty provided protection against dumped imports.

(4)       Some interested parties
claimed that the decision for registration of imports was unfounded, as the
conditions were not met pursuant to Article 14(5) of the basic Regulation.
However, these claims were not substantiated or based on factual evidence. At
the time the decision was taken to register imports the Commission had
sufficient prima facie evidence justifying the need to register imports,
in particular a sharp increase both in terms of absolute imports and in terms
of market share. The claims in this regard had therefore to be rejected.

3.           Acceptance
of an Undertaking with regards to provisional duties

(5)       By Commission Decision
2013/423/EU of 2 August 2013[4], the Commission has accepted an undertaking offered by exporting
producers together with the China Chamber of Commerce for Import and Export of
Machinery and Electronic Products ('CCCME').

4.           Subsequent
Procedure

(6)       Subsequent to the
disclosure of the essential facts and considerations on the basis of which it
was decided to impose provisional anti-dumping measures (‘the provisional
disclosure’), the Government of China ('GOC') and several interested parties
made written submissions making known their views on the provisional findings.
The parties who so requested were granted the opportunity to be heard. The
Association for Affordable Solar Energy (‘AFASE’), representing importers,
downstream and upstream operators and one importer requested and were afforded
hearings in the presence of the Hearing Officer of the Directorate-General for
Trade.

(7)       The
Commission continued to seek and verify all information it deemed necessary for
its definitive findings. The oral and written comments submitted by the interested
parties were considered and, where appropriate, the provisional findings were
modified accordingly.

(8)       In
addition, verification visits were carried out at the premises of the following
companies:

(i) Downstream operators

–
Jayme de la Costa, Pedroso, Portugal

–
Sunedison Spain Construction, Madrid, Spain

(ii) Independent consultant

–
Europressedienst, Bonn, Germany

(9)       AFASE
questioned the legal basis for the visit carried out at the premises of
Europressedienst, as it is not an interested party in this investigation and
does therefore not fall under Article 16 of the basic Regulation. Europressedienst,
as mentioned in recitals (99) and (120) to the provisional Regulation has
provided information on macroeconomic indicators. It is clarified that the Commission
carried out an on-the-spot verification at the premises of Europressedienst for
the sake of the principle of good administration to verify the reliability and
correctness of data on which the Commission based its findings.

(10)     The GOC reiterated the
claim that its rights of defence in relation to access to the files open for
inspection by interested parties were violated because (i) information was
missing from the non-confidential files without “good cause” being shown or
providing sufficiently detailed summaries, or exceptionally, the reasons for
the failure to provide the non-confidential summary, (ii) the non-confidential
version of an entire questionnaire response of a Union producer was missing and
(iii) the delays to make non-confidential versions of the Union producers’
questionnaire responses available for interested parties were excessive.

(11)     (i) Regarding the claim
that information was missing from the open file, the interested party did not
specify to which information it was referring to. (ii) Its claim that the
non-confidential version of an entire questionnaire response has not been made
available was incorrect. (iii) As to the delays in making available the
non-confidential replies of the questionnaires of the sampled Union producers,
it had been explained to the party concerned that the questionnaires were only
added to the non-confidential file after having been checked as to their
completeness and reasonableness of the summaries. In order to ensure the Union
producers’ right to anonymity, it was also ascertained that the
non-confidential versions of the questionnaires did indeed not reveal the
identity of the Union producer concerned. In some cases, the non-confidential
versions needed therefore to be corrected accordingly by the party submitting
it before they could be made available for other interested parties.

(12)     In any event, it is
considered that this did in no way affect the interested parties’ rights of
defence. The Commission has given all the interested parties the opportunity to
respond to the information included in the file open for inspection in time so
that their comments could be taken into consideration, when substantiated and
warranted before any conclusions were made in the investigation. The interested
party had every opportunity to comment on the questionnaires from sampled Union
producers also following the provisional and the final disclosure. Therefore,
even if the disclosures and the access to the file open for inspection by
interested parties are based on different legal provisions, it should be noted
that there were ample opportunities for the interested parties to comment on
all information made available by any party to the investigation. Therefore, this
claim had to be rejected.

(13)     All interested parties were
informed of the essential facts and considerations on the basis of which it was
intended to recommend the imposition of 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 and the
definitive collection of the amounts secured by way of provisional duty (‘the
final disclosure’). All parties were granted a period within which they could
make comments on the final disclosure.

(14)     The comments submitted by
the interested parties were considered and taken into account where
appropriate.

5.           Acceptance of an
undertaking in view of definitive duties

(15)     Following final disclosure,
the Commission received an amended offer for an undertaking by exporting
producers together with the CCCME, which covers also the parallel anti-subsidy
investigation. By Commission Decision 2013/XXX/EU of XX December 2013, the
Commission has confirmed the acceptance of that undertaking.

6.           Parties concerned by the
proceeding

(a)     Sampling
of Union producers

(16)     Following the imposition of
provisional measures, some interested parties reiterated the argument that
excessive use of confidentiality prevented them from commenting on the
selection of the sample of Union producers and thus from the proper exercise of
their rights of defence. The Commission already addressed this issue in recital
(9) to the provisional Regulation. As no new information was provided in this
respect, the conclusions in recital (9) to the provisional Regulation are
confirmed.

(17)     The GOC reiterated its
claim that the use of confidentiality of the names of the complainants and
sampled Union producers is not warranted. As already stated in recital (9) to
the provisional Regulation, the Union producers requested that their names be
kept confidential due to the risk of retaliation. The Commission considered
that these requests were sufficiently substantiated to be granted. The
information that has been provided to the Commission in order to substantiate
the risk of retaliation cannot be disclosed to third parties, as such
disclosure would defeat the purpose of the request for confidentiality.
Moreover, in a case, where, as reported by the GOC, a Union producer
re-evaluated its position and revealed its identity by filing an application
for a Court case against the provisional Regulation, there is no longer ground
to disclose information on the basis of which anonymity was granted, as the
identity has been revealed.

(18)     Further to the provisional
disclosure, one interested party reiterated that the information on which the
selection of the sample was based was not reliable, without, however, providing
any new evidence in this regard. This claim was therefore rejected.

(19)     Following the final
disclosure, the CCCME reiterated the arguments about the method used for the
selection of the provisional sample of the Union producers. It claims in
particular that the Institutions have not taken into account 120 producers. The
Commission already addressed this issue in recital (9) to the provisional
Regulation. Moreover, the Institutions have verified the activities of the
companies provided on that list. It turned out that that list mostly includes
installers, distributors, related importers and exporting producer in China,
Taiwan, and India. It therefore was not apt to demonstrate that the
Institutions had overlooked a significant number of Union producers. Moreover,
the CCCME has not contested the total Union production by providing alternative
figures, nor has it put forward any evidence that the representativity of the
sample could have been affected, as none of the alleged additional Union
producers would have been selected into the sample, had it been known to the
Commission.

(20)     Following the exclusion of
wafers from the definition of the product concerned, and thus from the scope of
this investigation as cited in recital (32) below, the final sample consisted
of eight Union producers. In the absence of any further comments with regard to
the sampling of Union producers, the findings in recitals (7) to (10) to the
provisional Regulation are herewith confirmed, as amended above.

(b)     Sampling of unrelated importers

(21)     Following the imposition of provisional measures, as
mentioned in recital (12) to the provisional Regulation, the Commission contacted
additional importers that had already cooperated in the investigation at
the initiation stage by providing basic information on their activities related
to the product under investigation during the investigation period, as
specified in the Notice of Initiation. The purpose was to determine whether the
size of the sample of unrelated importers could be increased. Six companies, qualifying as unrelated
importers trading the product concerned (i.e. purchasing and reselling it), came
forward and were willing to cooperate further in the investigation. Out of
these six, five replied within the deadline. Out of the five replies received,
only three were sufficiently complete and allowed for a meaningful assessment. On
this basis, the sample of the unrelated importers was enlarged and consisted of
four importers for modules, representing around 2 % - 5 % of the total imports
from the country concerned. Given the structure of the
unrelated importers, which were mostly small and medium-sized companies, it was
not possible to have a sample representing a larger share, given the limited
resources at the disposal of the Institutions.

(22)     In the absence of any
further comments with regard to the sampling of unrelated importers, recitals (11)
and (12) to the provisional Regulation, as amended above are confirmed.

(c)     Sampling of exporting producers

(23)     Following the provisional
disclosure, a number of non-sampled companies submitted comments arguing that
their situation is different from the sampled companies. They argued that, as a
consequence, they should benefit from an individual duty rate pursuant to
Article 17(3) of the basic Regulation. However, due to the high number of co-operating
companies (often groups of companies), it was not possible to individually
investigate all companies. Therefore, pursuant to Article 9(6), these companies
are subject to the weighted average duty of the sampled companies.

(24)     In the absence of any further
comments with regard to the sampling of exporting producers recitals (13) and (14)
to the provisional Regulation are confirmed.

7.           Investigation period and
period considered

(25)     As set out in recital (19) to
the provisional Regulation, the investigation of dumping and injury covered the
period from 1 July 2011 to 30 June 2012 ('the investigation period' or
'IP'). The examination of trends relevant for the assessment of injury covered
the period from 2009 to the end of the investigation period ('the period
considered').

B.        PRODUCT CONCERNED AND LIKE PRODUCT

1.           Introduction

(26)     As set out in recitals (20) to (49) to the provisional Regulation,
the product concerned as provisionally defined is crystalline
silicon PV modules or panels and cells and wafers of the type used in crystalline
silicon PV modules or panels, originating in or consigned from the PRC. The
cells and wafers have a thickness not exceeding 400 micrometers. This product is currently falling within CN codes ex 3818 00 10, ex
8501 31 00, ex 8501 32 00, ex 8501 33 00, ex 8501 34 00, ex 8501 61 20, ex 8501
61 80, ex 8501 62 00, ex 8501 63 00, ex 8501 64 00 and ex 8541 40 90 (‘the
product concerned’).

(27)     The following product types
are excluded from the definition of the product concerned:

–
solar chargers that consist of less than six
cells, are portable and supply electricity to devices or charge batteries

–
thin film PV products

–
crystalline silicon PV products that are
permanently integrated into electrical goods, where the function of the
electrical goods is other than power generation, and where these electrical
goods consume the electricity generated by the integrated crystalline silicon
PV cell(s).

2.           Claims
regarding the product scope

2.1.        Exclusion
of wafers

(28)     Following
the provisional disclosure, interested parties claimed that wafers should be
removed from the product scope since wafers do not share the same basic
physical, chemical and technical characteristics as cells and modules. In
addition to the arguments brought forward at the provisional stage, two additional
arguments were brought forward in this respect after the provisional
disclosure.

(29)     Firstly, interested parties
claimed that wafers can be used for other purposes than for the production of
cells, notably the production of integrated circuits and other micro devices.
In this respect, it is noted that not all wafers are included in the product
scope of this investigation, which is limited to "wafers of the type
used in crystalline silicon PV modules or panels", and that those wafers
have “a thickness not exceeding 400 micrometres". While wafers
certainly do exist in other applications, the investigation never covered wafers
which are used in the production of other products such as integrated circuits.
In addition, no producers, importers or users involved in the market for these other
types of wafers came forward alleging that their wafers would be subject to
registration or provisional anti-dumping duties. It is therefore confirmed that
these other types of wafers are not subject to the product scope of this
investigation. At the same time, this shows that wafers do not necessarily have
the same end use as cells and modules.

(30)     Secondly, interested
parties claimed that unprocessed wafers possess none of the essential electric
properties which distinguish solar cells and modules from other products. In
particular, wafers lack the ability to generate electricity from sunlight,
which is the key function of crystalline photovoltaic cells and modules.

(31)     This
claim can be accepted. Indeed after further verification and contrary to what
is stated in recital (36) to the provisional Regulation that "modules,
cells and wafers have the same end use, converting sunlight into electricity",
only once the wafer is transformed into a cell, does it obtain the functionality
to generate electricity from sunlight.

(32)     Due
to the different basic physical and technical characteristics, defined during
the investigation inter alia as the functionality to generate electricity
from sunlight, it is concluded on balance that wafers should be excluded from
the definition of the product concerned, and thus from the scope of this
investigation.

2.2.        Separate
investigations for cells and modules

(33)     Interested parties reiterated
that cells and modules are not a single product, and should therefore be
assessed separately, mainly repeating arguments already addressed in recitals
(27) to (39) to the provisional Regulation. Unlike wafers, however, cells and
modules do share the same basic property, i.e. the ability to generate electricity
from sunlight. These arguments were therefore rejected.

(34)     Following final disclosure,
one exporter argued that cells by themselves cannot produce electricity.
Allegedly, they need to be integrated into modules to do so. However, each cell
by itself has a capacity to generate electricity from sunlight of typically
around 4W. While this power may be insufficient for most applications which
require an assembly of multiple cells into modules, this does not mean that a
cell by itself does not already have the capacity to generate electricity.

(35)     Following final disclosure,
one exporter argued that the impossibility to establish a Normal Value for
modules on the basis of the Normal Value for cells, as described in recital (100)
below, demonstrates that modules and cells should not be considered a single
product.

(36)     In this respect, it is
noted that in the majority of anti-dumping investigations, including the
present investigation, a comparison between Normal Values and export prices is
made on the basis of product types. This is done since often a very broad range
of product types share the same basic physical, technical and/or chemical
characteristics, which often leads to a situation where product types with
substantially different costs and prices fall under the definition of the
"product concerned". The mere fact that it is not possible to
establish a Normal Value for a certain product type on the basis of the Normal
Value of another product type does not in itself mean that these product types
cannot be considered a single product. As described in recital (32) above, both
cells and modules do share the same basic physical and technical
characteristics, inter alia the functionality to generate electricity
from sunlight.

(37)     It is further argued that
if cells and modules were one single product with minor differences, adjusting
the prices of cells to establish a price of modules should not be difficult. In
this respect it is noted that there is no requirement that there are only minor
differences between the different types of the product concerned. To the
contrary, it is sufficient that the different types of the product concerned
share the same basic physical, technical and/or chemical characteristics. In
the present case, this is the case for modules and cells, inter alia the
functionality to generate electricity from sunlight.

(38)     The same party further
argued that cells are not just another type of module, but an entirely
different product. In effect, a cell is the key component of a module. As a key
component, a cell is clearly not "an entirely different product", as
modules and cells share the same basic characteristics of generating
electricity from sunlight, as indicated in recital (32) above.

(39)     The same party argued in
addition that when the samples for Union producers and Chinese exporters were
selected, the difference between cells and modules was taken into account.
Therefore, different duty rates for modules and cells should have been
established. In this respect, it is confirmed that the difference between
modules and cells was indeed taken into account when sampling Union producers
and Chinese exporters, as indicated in recitals (10) and (14) to the
provisional Regulation. This, however, was only done to ensure that the sample
is representative and does as such not mean that cells and modules should not
be considered a single product concerned, or that separate duty rates should be
established for cells and modules. Indeed, in order to ensure that the sample
was representative for all product types, it was important to distinguish
between cells and modules when selecting the sample. Furthermore, as there was
a certain degree of uncertainty with regards to the question as to whether
cells and modules were to be regarded as one product or as two separate
products, it was necessary to ensure representativity for both possible
outcomes.

(40)     In addition, it is argued
that recital (100) below stating that the processing costs for modules are
significant is in contradiction with recital (32) to the provisional
Regulation, which states that the value added is not concentrated in a
particular stage of the production process. In this respect, it is recalled
that recital (100) also clarifies that the cost difference between cells and
modules is 34%, which means that 66% of the value of a modules stems from the
cell. It is therefore concluded that the value added is not concentrated in a
particular stage of the production process.

(41)     Exporting producers claimed
that the fact that the undertaking imposes different minimum import prices and
volumes for cells and modules allegedly confirms that modules and cells are
distinct products requiring two distinct investigations. The different minimum
import prices, however, are merely an indication that cells and modules are
different groups of product types which are sold at different prices.
Therefore, it is necessary to define different prices to make the minimum
import prices meaningful.

(42)     Also, the fact that cells
and modules are distinct groups of product types is not as such relevant for
the definition of the product concerned. For the definition of the product
concerned, it is sufficient that the products share the same basic
characteristics and end uses, which is the case for modules and cells as described
in recitals (32) and (48) respectively.

(43)     The GOC argued that the
assessment whether cells and modules are a single product concerned does not
address a number of criteria defined by the Appelate Body in EC – Asbestos[5]. However, these criteria are used for the definition of the
"like product", not the product concerned. In other words, these
criteria have to be used to define the like product, for example the like
product produced by Union Industry, which is then compared with the product
concerned exported by the Chinese exporting producers. These criteria are not
pertinent when defining the product concerned. In any event, the Institutions
observe that the application of the criteria used in EC – Asbestos to
the definition of the product concerned in the present case would not lead to a
different outcome. The first and the second criteria (properties, nature and
quality respectively end-uses) are identical to the criteria physical, chemical
and technical properties and end-uses used in the preceeding recitals. The
third criterion (consumers taste and habits) is not really useful for the
present case, as cells are the key component of modules; as regards the fourth
criterion, tariff classification, it is noted that both cells and modules can
be declared under customs heading 8541 40 90, while the customs headings under
heading 8501 are for electric generators in general and not in particular for
solar products.

(44)     Other interested parties
argued that an objective application of the criteria developed by the Court of
Justice in previous cases[6] allegedly leads to the conclusion that modules and cells are
different products. In this respect, it is noted that the court only indicated
a number of criteria which may be taken into account ‑ there is no obligation
to use all criteria in all cases, since not all of them may be relevant. These
criteria were assessed in recitals (27) to (39) to the provisional Regulation,
where it was found that a number of criteria are not relevant in the present
case. In the Brosmann case the assessment whether different types of
shoes belong to the "product concerned" was also made on the basis of
only three criteria which were found to be relevant. As the interested parties
did not provide any reasoning why an objective application of the criteria
leads one to conclude that modules and cells are distinct products, the
argument cannot be accepted.

(45)     In addition, it is recalled
that cells and modules have the same basic end uses, i.e. they are sold for
integration into PV solar systems. The modules performance is directly linked
to the performance of the cells, as indicated in recital (28) to the
provisional Regulation.

(46)     One interested party argued
that with the exclusion of wafers from the product scope, and due to the
significant processing involved to make modules from cells, the argument that
cells and modules have the same end uses also stands refuted. It is also argued
that the assessment that modules and cells have the same end uses is based on
the assumption that wafers, modules and cells have the same production process.

(47)     Firstly, the conclusion
that the assessment that modules and cells have the same end uses is based on
the production process is wrong. While both statements are indeed in the same
recital (36) to the provisional Regulation, this does not mean that one
conclusion is based on the other assumption. The word "moreover"
separating the two statements makes it clear that the second statement is not
based on the first. In addition, the two statements are made to address
separate issues under the heading "End use and interchangeability".
The first statement concerning the production process addresses
interchangeability, while the second statement addresses end use. The
underlying assumption that the assessment that modules and cells have the same
end uses is based on the assumption that wafers, modules and cells have the
same production process is therefore incorrect.

(48)     As
to the actual end use of cells and modules, it is not disputed by interested parties
that modules and cells are sold for integration into PV solar systems. The
conclusion that modules and cells have the same end use is therefore confirmed.

2.3.        Mono
and multi-crystalline cells

(49)     One interested party
claimed that there was no production of mono crystalline cells in the Union,
and that their exports of mono crystalline cells were not competing with the Union
industry. The investigation showed however that there was indeed production of
mono crystalline cells in the Union. This argument was therefore rejected. In
any event, the General Court held in Brosmann that the absence of Community
production of a particular product type is not decisive.

2.4.        "Consigned
from" clause

(50)     Interested parties argued
that the extension of the scope of the investigation was to products
"consigned from" the PRC, while the investigation was initiated only
against products originating in the PRC was unjustified.

(51)     However,
goods consigned from the PRC were already covered at the initiation stage. In point
5 of the Notice of Initiation[7] it is
stated that "companies which ship the product concerned from the
People's Republic of China but consider that part or even all of those exports
do not have their customs origin in the People's Republic of China are invited
to come forward in the investigation and to furnish all relevant information".
It is therefore clear that all companies consigning goods from the PRC had the
opportunity to co-operate in this investigation. Furthermore, since the product
under investigation frequently incorporates components and parts from different
countries, it was also announced in point 5 of the Notice of Initiation that
"special provisions may be adopted" to address this issue.

(52)     It is therefore considered that
all economic operators affected were duly informed of the possibility that special
provisions in respect of goods consigned from the PRC may be adopted, if
appropriate, and were invited to co-operate in the investigation. Thus the
scope of the investigation was not extended to products "consigned from
the PRC", since these were covered from the outset.

(53)     Following disclosure,
interested parties argued that irrespective of the provisions in the Notice of
Initiation referred to in recital (51) above, the investigation was limited to
goods originating in the PRC and did not assess the impact of goods consigned
from the PRC.

(54)     In this respect, it is
noted that the following steps were taken to ensure that all goods consigned
from the PRC were assessed during the investigation, and not only goods
originating in the PRC:

·
All companies which ship the product concerned
from the PRC were invited to come forward in the investigation irrespective of
the origin of the goods.

·
In Annex A of the Notice of initiation,
exporters were asked to report information for all products manufactured by the
company. This information was not limited to goods originating in the PRC.

·
On the basis of this information, which
contained all exports to the EU irrespective of the origin of the goods, a
representative sample was selected.

·
The sampled producers received a questionnaire
for "producers exporting to the European Union", and the PRC was
referred to as "country concerned", not country of origin. It was
therefore clear that all goods irrespective of the origin of the goods were
investigated.

(55)     On this basis, it is
concluded that the investigation covered all goods originating in or consigned
from the PRC, and that the findings of the investigation, including dumping and
injury, cover all goods originating in or consigned from the PRC.

(56)     Following final disclosure,
interested parites argued that the complaint contained only prima facie
evidence concerning imports of solar panels originating in the PRC, not goods
consigned from the PRC. In this respect, it needs to be clarified that the
complaint indeed covered goods "from the PRC", which can be seen from
the cover page submitted by the applicant bearing the stamp. Before this page,
there is another page on the file which indeed uses the wording
"originating in the People's Republic of China". But this case was
not part of the document submitted by the complainant, but added as a cover
page by the Commission Services, using the name of the investigation rather
than repeating the title of the complaint. It is therefore considered that the
complaint covered all goods from the PRC, whether originating in the PRC or
not.

(57)     Chinese exporting producers
further argued that exporting producers in third countries cannot reasonably be
expected to have known that their products could also be targeted by the
investigation. In this respect it is noted that the measures do not apply to
goods which are in transit in the sense of Article V GATT. Therefore, exporting
producers which have no operations in the PRC are not affected by the measures.
Furthermore, no exporting producers in third countries came forward raising the
issue that the products they export are subject to the anti-dumping duty.

(58)     The same exporting
producers argued that exporting producers in third countries were not asked to
come forward, and not given the opportunity to show that their products are not
dumped. The Institutions consider that those exporting producers without any
operations in the PRC are not affected by the measures, as their goods, if
consigned from the PRC, will have been in transit. All other exporting
producers were informed by the Notice of Initiation that their operations are
part of the investigation.

(59)     The GOC argued that while
Article 1(3) of the basic Regulation allows deviating from the principle that
the exporting country is the country of origin, this Article cannot be used in
the present case. In support of this claim they argue that no complete analysis
whether the exporting country may be an intermediary country. The Institutions
disagree with this interpretation of Article 1 (3) of the basic Regulation. No
party contests that there is significant production in the PRC. Whether or not
the PRC is the country of origin of the finished goods depends on several
factors. The analysis of dumping, injury, causation and Union interest carried
out by the Institutions refers to that production, irrespective of the question
whether the finished exported good has its customs origin in the PRC. As there
were strong indications that not all products which were at least partially
produced in the PRC would be considered to have their customs origin in the
PRC, the Institutions decided that it was necessary to cover also products for
which the PRC is only an intermediary country.

(60)     The GOC further argued that
since no Chinese exporter has been granted MET, there is no comparable price
for solar panels in ine PRC, and as a consequence the PRC cannot be used as an
intermediate country. However, in this respect it is noted that the three
conditions of Article 1(3) of the basic Regulation are given as examples only,
and not all conditions may be relevant in all cases. In the present case, since
no Chinese exporter has been granted MET, the comparable price had to be
established in the analogue country – and this comparable price is the same
irrespective of whether The PRC is considered the country of origin or the
intermediate country. Therefore, the issue whether there is a comparable price "in
that country" is irrelevant, as in the present case the comparable price
is not established "in that country", but in the analogue country.

2.5.        Solar
chargers

(61)     Following the provisional
disclosure, interested parties claimed that the definition of "solar
chargers that consist of less than six cells" is too narrow, and should be
extended to products with a similar function which are not covered by this
definition such as products with a similar size using a larger number of
smaller cells.

(62)     In addition, interested
parties claimed that the definition of "silicon PV products that are
permanently integrated into electrical goods" is too narrow, as only the
complete electrical good is excluded, while solar components for integration
into the electrical goods are not necessarily excluded.

(63)     Indeed, an analysis of the above
arguments showed that it is more appropriate to add to the exclusion of such
products a criterion on the basis of a technical standard. In particular, it
was established that the definitions of the following standard more
appropriately define the products which should be excluded from the scope of
the measures: international Standard IEC 61730-1,
Application Classes, Class C: Limited Voltage, limited power applications (p.
13)[8].

(64)     Following
definitive disclosure, comments were received concerning the exclusion based on
the international standard mentioned above. It was argued that rather than
referring to the standard, it would be more appropriate to define the exclusion
on the basis of the output voltage and the power output as "modules or
panels with a output voltage not exceeding 50 V DC and a power output not
exceeding 50 W solely for direct use as battery chargers in systems with the
same voltage and power characteristics". This claim could be accepted,
and the exclusion is finally determined according to this definition.

2.6.        Roof-integrated
solar modules

(65)     Another interested party
claimed that roof-integrated solar modules should be excluded from the product
scope of the investigation, since they combine the functionality of a solar
module with that of a roof tile or slate. Therefore, they would not be directly
interchangeable with a standard solar module.

(66)     The
investigation, however, showed that both standard modules and the
roof-integrated solar modules have to comply with the same electrical
standards. In addition while the roof-integrated solar module cannot be simply
replaced with a standard module, it can be replaced by a standard module plus
roof tiles or slate. These products therefore have the same basic technical
property of generating electricity from sunlight. The added functionality
(which is otherwise provided by roofing material) was not considered
substantial and does not warrant an exclusion of roof-integrated solar modules
from the product scope.

(67)     Following definitive
disclosure, the same interested party argued that the absence of
dual-interchangeability between roof-integrated solar modules and standard
solar modules is an indication that roof-integrated solar modules should be
excluded from the scope of the measures, referring to the footware[9] case in general and special technology
athletics footwear 'STAF' in particular. However, the reasons for the exclusion
of STAF were numerous, and the absence of dual interchangeability by itself was
not considered a sufficient ground by the General Court in the Brosmann[10] case, which confirmed that very different product such as city
trotters and hiking boots can indeed be considered product concerned in a
single anti-dumping investigation despite their differences.

(68)     In addition, the interested
party argued that due to the absence of production in the Union and the fact
that the interested party holds intellectual property rights is allegedly a
confirmation that roof-integrated solar modules are innovative and different
from any other product. However, referring again to the footwear case
mentioned by the interested party, the General Court held in Brosmann that “the
absence of Community production of that type of footwear and the existence of a
patent are not conclusive."[11]. As a
result, patented technology footwear was considered product concerned in that
case.

(69)     The interested party also
argued that roof-integrated solar modules should be excluded from the
definition of the product concerned, since they are sold at substantially
higher prices than standard modules. Also, in the footwear case STAF
above a certain price were excluded from the definition of the product
concerned. In this respect, it is noted that a roof-integrated solar module does
combine the functionality of a solar module and roof tile or slate, as
indicated in recital (66) above. A direct comparison of prices is therefore not
meaningful, as the added functionality naturally leads to higher prices.

(70)     In response to this argument,
the interested party argued that on the basis of this argumentation, it would
be impossible to ever invoke price differences as an additional indicator
warranting the exclusion from the product scope. However, this interpretation
is too far-reaching. What is said in the previous recital is merely that in
this particular case where the roof-integrated modules combine the
functionality of the product concerned plus another product (in this case roof
tile or slate), the price is naturally not meaningful. This in no way means
that in other cases the price difference cannot be a useful indicator to
establish whether a product should be excluded from the definition of the
product concerned.

(71)     Lastly, the interested
party argued that its supplier of roof-integrated solar modules should be
granted access to the minimum price undertaking. However, it appears that the
Chinese exporter concerned did not co-operate in the investigation, and as a
non-cooperating party is not eligible to participate in the undertaking. These
request can therefore not be accepted.

3.           Conclusion

(72)     In
view of the above, the product scope is definitively defined as crystalline
silicon PV modules or panels and cells of the type used in crystalline silicon
PV modules or panels, originating in or consigned from the PRC unless they are
in transit in the sense of Article V GATT. The cells have a thickness not
exceeding 400 micrometres. This product is currently falling within CN codes ex
8501 31 00, ex 8501 32 00, ex 8501 33 00, ex 8501 34 00, ex 8501 61 20, ex 8501
61 80, ex 8501 62 00, ex 8501 63 00, ex 8501 64 00 and ex 8541 40 90.

(73)     The
following product types are excluded from the definition of the product
concerned:

–
solar chargers that consist of less than six
cells, are portable and supply electricity to devices or charge batteries,

–
thin film photovoltaic products,

–
crystalline silicon photovoltaic products that
are permanently integrated into electrical goods, where the function of the
electrical goods is other than power generation, and where these electrical
goods consume the electricity generated by the integrated crystalline silicon
photovoltaic cell(s).

–
modules or panels with a output voltage not
exceeding 50 V DC and a power output not exceeding 50 W solely for direct use
as battery chargers in systems with the same voltage and power characteristics.

(74)     Following
the exclusion of wafers, the analysis has been revised by excluding the data and
analysis related to wafers, unless otherwise indicated. Given that wafers
represented only a small percentage of imports of the product concerned in the Union
(around 2 % in value) during the IP, the exclusion of wafers is considered to
have a negligible impact if any on the findings. All comments by interested
parties have been addressed but any reference to wafers even if raised has been
excluded. As a consequence all references and related data concerning wafers
reported in the recitals to the provisional Regulation are no longer applicable,
even when relevant recitals are confirmed by this Regulation.

(75)     Consequently,
the provisional conclusions, modified as set out under recitals (26) to (74)
above, were definitively confirmed. For the purposes of this proceeding and in
accordance with consistent practice, it was therefore considered that all types
of the product concerned should be regarded as forming one single product.

C.        DUMPING

1.           The
PRC

1.1.        Market
Economy Treatment (MET)

(76)     Following
the provisional disclosure, interested parties claimed that the MET
determination was made out of time, i.e. after the three-month period laid down
in Article 2(7)(c) of the basic Regulation and that the investigation therefore
should be terminated without delay.

(77)     In
this respect, these parties argued that the amendment of the basic Regulation[12] purportedly extending the deadline to make the MET determination to
eight months only entered into force after the expiry of previously applicable
three months deadline. The amendment would apply only to future investigations
and to pending investigations where the deadline for making the MET
determination had not yet lapsed at that time.

(78)     However, Article 2 of the amendment of the basic Regulation clearly
states that "this Regulation shall apply to all new and to all pending
investigations as from 15 December 2012". This Article, or indeed the
whole Regulation, does not contain any reference to the restriction "where
the deadline for making the MET determination had not yet lapsed" claimed
by the interested parties. Therefore, this argument cannot be accepted.

(79)     Following
final disclosure, several interested parties re-iterated their argument that
the MET determination was made out of time, without challenging the fact that
the amendment of the basic Regulation referred to in recital (78) above applies
to "all pending investigations", which includes the present
investigation. It is therefore finally concluded that the MET determination was
not made out of time.

(80)     Following
final disclosure, one exporter claimed that MET should not have been denied
because three companies which ceased operations during 2011 did not have one
clear set of basic accounting records. In particular, it was questioned
pursuant to which accounting standard a company which ceased operations should
nevertheless prepare such accounting records.

(81)     In
this respect it is noted that the accounting standards do not define which
companies are required to prepare financial statements - accounting standards
define how these statements have to be prepared. In the case of The PRC, it is
the "Accounting Standard for Business Enterprises: Basic Standard"
which defines in its Article 4 that "an enterprise shall prepare financial
reports". This is a mandatory obligation, and there is no exemption for
companies which ceased operation.

(82)     Furthermore,
even though these companies ceased operation, they still owned assets
(including land, buildings, machinery and stocks) and liabilities and did exist
as legal entities at least until early 2013. It is therefore considered that
these companies were obliged to publish accounting records for the year 2011,
and the lack of these accounting records constitutes a violation of criterion
2.

(83)     Following
final disclosure, exporters also claimed that the benefits received from
preferential tax regime(s) and grants do not represent a significant proportion
of their turnover, which is allegedly confirmed by the parallel anti-subsidy
investigation.

(84)     In
this respect, it is recalled that this argument was already addressed in
recital (65) to the provisional Regulation. It was stressed that in particular
due to the nature of this advantage, the absolute benefit received during the
IP is irrelevant for assessing whether the distortion is 'significant'. This
claim is therefore rejected.

(85)     In the absence of other
comments regarding the Market Economy Treatment, all determinations in recitals
(50) to (69) to the provisional Regulation are confirmed.

1.2.        Individual
examination

(86)     As indicated in recital
(70) to the provisional Regulation, 18 cooperating exporting producers or
groups of exporting producers not selected in the sample submitted claims for
individual examination pursuant to Article 17(3) of the basic Regulation. In
the present case, the sample already consisted of seven groups of companies,
which typically consist of a number of exporting producers, related traders and
related importers in the Union and third countries. An individual examination
of 18 additional (groups of) exporting producers, in addition to the seven
groups of exporting producers included in the sample, would be unduly
burdensome and would prevent completion of the investigation in good time

(87)     In
the absence of other comments regarding individual examination, all
determinations in recitals (70) to (71) to the provisional Regulation are
confirmed.

1.3.        Analogue
Country

(88)     Interested parties noted
that India is not a suitable analogue country due to local content provisions
for projects of the "Jawaharlal Nehru National Solar Mission"
('JNNSM'). One party alleged that a 75% local content is required, while
another party alleged that Indian producers can charge higher prices for 100%
domestically produced modules. They further alleged that such requirements
significantly increase prices of local products. In support of this claim, an
Indian press article was submitted[13]. However,
this Article was published almost one year after the end of the IP, and no
proof for its impact during the IP has been provided.

(89)     However, the same press
article reported that the Indian solar industry faces "stiff competition
from western and Chinese manufacturers". This is supported by the steady
increase of imports into India, as stated in recital (92) below. While the
local content requirements may indeed have a certain impact on the Indian domestic
market, a clear conclusion can nevertheless be drawn that the Indian market is
a competitive one, where numerous Indian and foreign companies effectively
compete with each other.

(90)     In
addition, according to information published by the JRC[14], the majority of the JNNSM projects will come on-line from 2015
onwards. Indeed, the target for grid-connected PV systems under the JNNSM for
2012 was only 50 MW compared to a total grid-connected capacity in India
exceeding 1 GW already in June 2012. This shows that during the IP the
importance of the JNNSM on total solar installations in India was below 5% and
therefore the impact of the JNNSM and its local content requirements, if they
already existed during the IP, a fact that has not been established by the
interested parties, was at best very limited. The majority of the installations
during the IP were in the state of Gujarat (about 65%), driven by state support
policies.

(91)     Interested
parties claimed that the Indian market was de facto protected during the
IP from imports from a variety of sources, including the PRC, because the
initiation of an anti-dumping investigation was looming since the beginning of
2012. Indeed, India initiated an anti-dumping investigation against imports of
solar cells and modules from the PRC, Malaysia, Taiwan and the USA on 23 November
2012, i.e. only almost five months after the end of the IP.

(92)     However,
this allegation is not supported by the development of imports of solar cells
and modules reported by the Indian trade statistics[15]:

Values in million USD ||             April 2010 ‑ March 2011 ||             April 2011 ‑ March 2012 ||             April 2012 ‑ March 2013

PRC ||             77,33 ||             577,24 ||             371,72

Index ||             100 ||             746 ||             481

Total ||             252,63 ||             1 348,48 ||             827,07

Index ||             100 ||             534 ||             327

(93)     The table above shows that
imports of solar cells and modules dramatically increased by more than 600 %
for the PRC and more than 400 % overall between 2010/11 and 2011/12.
Subsequently, the import values somewhat decreased, but so did prices for solar
cells and modules. Indeed, the drop in import values between 2011/12 and
2012/13 is in line with the price decrease reported by specialized
consultancies such as pvXchange for the same period, leading to the conclusion
that the import volumes remained rather stable between 2011/12 and 2012/13. It
is therefore concluded that the Indian market was not de facto protected
during the IP from imports from a variety of sources, including the PRC.

(94)     Following final disclosure,
the Government of China argued that the USA have requested consultations with
India under the WTO dispute settlement procedures concerning the local content
requirements of the JNNSM on 6 February 2013. The effect of these local content
rules, in combination with the anti-dumping investigation mentioned in (91)
above, allegedly led to a decrease of 38% in value terms in April 2012 –
March 2013 compared to the previous year, in contrast to the increase in
previous years.

(95)     In this respect, it is noted
that the decrease in value terms is due to a decrease in prices rather than
import volumes. Following definitive disclosure, an interested party provided
information on the development of imports of solar cells and modules on the
Indian market in terms of volume between 2010 and March 2013. This data shows a
steady increase if imports of solar modules and cells into the Indian market in
terms of volume. It is therefore concluded that the Indian market was not de
facto protected due to a looming anti-dumping investigation, and the claimed,
but not proven, in any event at the very best minor effects of the local
content requirements under the JNNSM mentioned in recital (90) above did not
prevent a steady increase in imports in terms of volume.

(96)     In addition, it is pointed
out that the period of April 2012 – March 2013 showing the alleged effects of
the JNNSM on imports into India is predominantly after the IP. Any possible
impact of this alleged decrease on the IP can therefore only be minor.

(97)     One interested party
alleged that Tata Power Solar ('Tata') only recently entered the market, and is
therefore not a suitable analogue country producer. In this respect, it is
noted that the company, previously "Tata BP Solar", is producing
solar modules since 1989 and can therefore not be considered having entered the
market only recently. Indeed, according to information provided by another
interested party, Tata entered the market significantly earlier than the five
largest sampled Chinese exporters.

(98)     One interested party
claimed that Taiwan would be a more suitable analogue country than India, since
the size of the Taiwanese companies is more comparable to the size of the
Chinese exporters, and there is also co-operation from Taiwanese producers.
Also, other interested parties questioned whether India would be a reasonable
analogue country given the comparably small size of Tata without proposing a
more suitable alternative.

(99)     Indeed, Taiwanese companies
co-operated. One company fully co-operated, while another company only
co-operated partially. The sole fully co-operating Taiwanese company is however
smaller than Tata, in particular in terms of sales and production of modules
which account for around 90% of the sales of the product concerned, where Tata
sells substantially more than the Taiwanese company who only has insignificant
sales in this respect, as mentioned in recital (76) to the provisional
Regulation. Following definitive disclosure, one exporter asked whether the
partially co-operating Taiwanese company was contacted to furnish the missing
information. In this respect it is referred to recital (76) to the provisional
Regulation, which clarifies that Taiwan could not be used as analogue country
since the co-operating Taiwanese companies almost exclusively produced cells,
while the Chinese exports are mainly in the form of modules. This also applies
to the partly co-operating Taiwanese producer. Since this producer was already
considered unsuitable for this reason, it was not considered appropriate to
request additional information from this company.

(100)   The
same interested party claimed that the almost complete lack of sales of modules
does not disqualify Taiwan as analogue country per se, since the
processing costs from making cells into modules can be established without much
difficulty. This is, however, not supported by the facts of the investigation.
Producing a module from cells requires multiple steps of production, during
which a significant part of the value added of the module is created. As
indicated in recital (137) to the provisional Regulation, during the IP the
average price difference between cells and modules was EUR 555,92 or 54%,
while the average cost difference amounted to EUR 377,99 or 34%. This would
mean that a significant share of a possible Taiwanese Normal Value for modules
would have to be based on adjustments for processing costs, which cannot be
considered more reasonable than a country where the Normal Value can be based
on domestic sales prices for most of the product concerned. It is therefore
considered that India has been selected as analogue country in a reasonable
manner, taking account of the available reliable information.

(101)   Another interested party
argued that no reasons were given why the USA was not considered an appropriate
analogue country. In this respect reference is made to recital (74) to the
provisional Regulation, where it is clearly stated "that the USA would
not be a suitable analogue country, mainly due to the fact that the US market
was protected from Chinese imports during part of the IP by anti-dumping and
anti-subsidy measures." Since no comments on the protection of the US
market as such were received, the position in this respect remains unchanged.

(102)   Interested parties argued
that the result of the dumping calculation is distorted due to differences in
economies of scale between the Chinese producers and the Indian producer. It
was therefore checked whether a correlation between a company's production
volume and its dumping margin indeed exists.

(103)   Of the seven company groups
included in the sample, there are two medium sized company groups (Jinzhou
Yangguang and Delsolar) and five large company groups (JingAo, LDK, Suntech,
Trina and Yingli). Of the medium sized companies, Jinzhou Yangguang has the
lowest margin, while Delsolar has the highest margin. The five larger companies
are in-between. This clearly demonstrates the absence of any correlation
between economies of scale and dumping margins. Therefore, it is considered
that the dumping calculation is not distorted due to differences in economies
of scale between the Chinese producers and the Indian producer.

(104)   Following definitive
disclosure, interested parties claimed that the absence of any correlation
between economies of scale and dumping margins does not show that there is no
impact of economies of scale and the comparability of prices. In a situation
where the dumping margin is based on an identical Normal Value for all
exporters as in the present case, the dumping margin is mainly driven by the
export prices. The absence of any correlation between economies of scale and
dumping margin therefore equally demonstrates the absence of any correlation
between economies of scale and sales prices. It is therefore concluded that
differences in economies of scale do not affect the comparability of prices in
the present case.

(105)   One interested party claimed
that the analogue country producer had extremely high domestic sales prices,
which allegedly are significantly higher than the sales prices of the Union
industry, since the dumping margin significantly exceeds the undercutting
margin. This claim was made by comparing Indian Normal Values with the sales
prices of the Union industry. This comparison is, however, flawed since the
Indian Normal Value is based on the profitable sales only. Especially in a situation
where the Union industry is loss-making, it is not surprising that profitable
prices in India exceed the average Union industry price. Therefore, the fact
that the Indian Normal Value exceeds average Union industry prices does not
demonstrate that the choice of India as analogue country is unreasonable.

(106)   One interested party argued
that Tata's prices are distorted, since it is related to Tata Power, a utility
company. This allegedly allows Tata to charge higher prices in the areas served
by Tata Power. However, no supporting evidence was provided, and no
quantification of this alleged effect was provided either. This claim could
therefore not be accepted.

(107)   Following definitive
disclosure, one exporter argued that Tata is an uncompetitive company with high
production costs and sales prices, which was allegedly the reason why BP Solar
withdrew from the joint venture in December 2011. In support of this, a press
article is quoted, stating that "BP's exit from the solar industry after some four
decades shows how competitive and crowded the solar market has become." However, this article did not single out
Tata as an uncompetitive company, it addressed the situation on the market for
solar panels in general, speaking about "cutthroat competition that
marks an industry", and that "many companies worldwide have
closed factories, laid off hundreds of workers and filed for
bankruptcies". This press article can therefore not demonstrate that
Tata is an uncompetitive company with high production costs and sales prices.

(108)   Following disclosure, one exporter
argued that Tata was not included as part of the Indian domestic industry in
the on-going Indian anti-dumping investigation mentioned in recital (91) above,
due to its significant imports of cells. While it is confirmed that Tata is
indeed not part of the Indian domestic industry in the on-going Indian
anti-dumping investigation, this does not automatically mean than Tata is not a
suitable analogue country producer. The Normal Value was based exclusively on cells
and modules produced by Tata in India, and not on imported goods. The fact that
imported components were used in the production of some of the products does
not mean that the resulting Normal Value is not representative for India, even
more so since it is predominantly based on sales prices and not on costs.

(109)   The Government of China
argued that Tata's sales of modules allegedly only represent only 0,3% of the
Chinese exports to the EU and cannot be considered representative, referring to
the Detlef Nölle[16] judgment of the Court. In that case, the Court considered that when
the total production in a country is only 1,25% of the export volume to the EU,
this amounts to an indication that the market considered is not very
representative. In the present case, the Government of China did not compare
the total production in India with the total Chinese exports, but only the
production of one Indian company with the total exports of all Chinese
exporters. This comparison is however flawed, since in a competitive market
with multiple players the quantities relating to only one producer are not
indicative of the representativity of the market as a whole. In addition, it is
not the comparison which was made in the Detlef Nölle case either, where
the total production of the country was compared with total exports. According
to information provided by the China Chamber of Commerce for Import and Export
of Machinery ('CCCME'), production in India was forecasted to exceed 2 GW
before the end of 2012, i.e. shortly after the end of the IP. Such a production
would be equal to 14% of Chinese exports to the EU, well above the 5% indicative
threshold mentioned in the Detlef Nölle judgment.

(110)   Following disclosure, one
interested party referred to the fact that Tata lacks upstream integration and
has to source wafers from third parties. Allegedly, this lack of upstream
vertical integration leads to an increase of costs compared to vertically
integrated Chinese producers. This claim was however not substantiated. In
particular, the total cost of Tata would only be higher if their purchase price
for wafers would exceed the cost of production of a wafer, which is uncertain
since many companies in the solar business have been loss-making during the IP.
Furthermore, even large vertically integrated Chinese producers often purchased
significant quantities of wafers from independent suppliers, which supports the
conclusion that the lack of vertical integration into wafers does not
necessarily lead to higher costs for modules and cells.

(111)   One interested party argued
that the analogue country is uncompetitive. This claim is supported by the fact
that the production of solar cells in India is at a 5-year low in 2013. The
report quoted by that interested party however showed during the IP the Indian
cell production was still at a high level close to the peak reported. The
significant decrease in production occurred after the IP, and therefore had no
impact on the results of the investigation.

(112)   Another argument brought
forward to support the claim that the analogue country is uncompetitive is the
anti-dumping investigation mentioned in recital (91) above. The Institutions
observe that that investigation is still on-going, and that therefore, no
conclusions can be drawn from it. In general, anti-dumping investigations are
not an indication for a lack of competitiveness, but an indication that the
domestic industry considers that it is subject to unfair trade practices from
competitors located in third countries.

(113)   On balance, the Commission
considers that the choice of India as an analogue country is not unreasonable.

(114)   In the absence of other
comments regarding the Analogue Country, all determinations in recitals (72) to
(77) to the provisional Regulation are confirmed.

1.4.        Normal
Value

(115)   Following the provisional
disclosure, one interested party commented that the Indian companies mainly
sold off-grid modules, which have higher prices and costs than the
grid-connected modules sold by the Chinese exporters. It was further claimed
that off-grid modules typically have a lower power output than grid-connected
modules.

(116)   In this respect, it is noted
that different Normal Values were established for "standard-sized"
modules with more than 36 cells which are typically grid connected and smaller
modules with 36 cells or less which are typically used off-grid. It is
therefore considered that an appropriate Normal Value is established for all
product types, including off-grid modules and grid-connected modules.

(117)   Another interested party
stated that Tata is also active as a project developer, and the sales of this
company are therefore not comparable with sales of modules only by Chinese
exporting producers. In this respect it is noted that the comparison between domestic
Indian prices and Chinese export prices were exclusively made for sales of
modules, and sales of complete projects or integrated solutions were not used
to establish Normal Value as they were not considered to be comparable.

(118)   In the absence of other
comments regarding Normal Value, all determinations in recitals (78) to (86) to
the provisional Regulation are confirmed.

1.5.        Export
price

(119)   Following the provisional
disclosure, some of the sampled exporters commented on minor issues concerning
the export price used to establish the dumping margin. Where warranted, the
comments were taken into account and led to a slight revision of the dumping
margin of the companies concerned.

(120)   In the absence of any other
comments regarding export price, all determinations in recitals (87) to (89) to
the provisional Regulation are confirmed.

1.6.        Comparison

(121)   Following the provisional
disclosure, some of the sampled exporters commented on minor issues concerning
the allowances used to compare export prices. Where warranted, the comments
were taken into account and led to a slight revision of the dumping margin of
the companies concerned.

(122)   Following the provisional
disclosure, a clerical error resulting in an incorrect adjustment to Normal
Value for domestic freight was discovered. This error was corrected and led to
a slight decrease in dumping margins.

(123)   Following disclosure, one
interested party claimed that an adjustment for level of trade may be
warranted, since the party does not sell directly to installers, but to
resellers and distributors. The party requested detailed information on the
sales channels of the analogue country producer, which could not be provided to
protect confidential information. As an alternative, the customer base of the
analogue country producer was categorized into different categories according
to sales volume, which showed that a level of trade adjustment was not
warranted.

(124)   In response to this
analysis, the interested party admitted that a difference in sales quantities
would result in price differences, but maintained their argument that they
would allegedly charge higher prices to installers than distributors/resellers
even if the installer would buy a similar quantity than the
distributor/reseller. However, this claim was not substantied and could
therefore not be taken into account.

(125)   In the absence of any other
comment regarding export price, all determinations in recitals (90) to (92) to
the provisional Regulation are confirmed.

1.7.        Dumping
margins

(126)   One
sampled exporting producer requested a full disclosure of its dumping
calculations, claiming that it could otherwise not comment on the accuracy
thereof. As this company was not granted MET, its
normal value was based on data from India as analogue country. Given that only
one producer in the analogue country fully co-operated in the investigation,
information from the analogue country cannot be disclosed on a product type
level in order to protect confidential information. Therefore, the claim needs
to be rejected.

(127)   For
the sampled companies, the weighted average normal value of each type of the
like product established for the analogue country was compared with the
weighted average export price of the corresponding type of the product concerned,
as provided for in Article 2(11) and (12) of the basic Regulation.

(128)   The weighted average dumping
margin of the cooperating exporting producers not included in the sample was
calculated in accordance with the provisions of Article 9(6) of the basic
Regulation. Accordingly, that margin was established on the basis of the
margins established for the sampled exporting producers.

(129)   On that basis, the
definitive dumping margin for the cooperating companies not included in the
sample was established at 88,1 %.

(130)   With regard to all other
exporting producers in the PRC, the dumping margins were established on the
basis of the facts available in accordance with Article 18 of the basic
Regulation. To that end the level of cooperation was first established by
comparing the volume of exports to the Union reported by the cooperating
exporting producers with the volume of Chinese exports, as established in
recital (167).

(131)   As the cooperation accounted
for more than 80 % of total Chinese exports to the Union, the level of
cooperation can be considered high. Since there was no reason to believe that
any exporting producer deliberately abstained from cooperating, the residual
dumping margin was set at the level of the sampled company with the highest
dumping margin. This was considered appropriate since there were no indications
that the non- cooperating companies were dumping at a lower level, and in order
to ensure the effectiveness of any measure.

(132)   On this basis the definitive
dumping margins expressed as a percentage of the CIF Union frontier price, duty
unpaid, are as follows:

Company ||             Dumping Margin

Changzhou Trina Solar Energy Co. Ltd Trina Solar (Changzhou) Science & Technology Co. Ltd Changzhou Youze Technology Co. Ltd Trina Solar Energy (Shanghai) Co. Ltd Yancheng Trina Solar Energy Technology Co. Ltd ||             90,3 %

Delsolar (Wujiang) Ltd, ||             111,5 %

Jiangxi LDK Solar Hi-Tech Co. Ltd LDK Solar Hi-Tech (Hefei) Co. Ltd LDK Solar Hi-Tech (Nanchang) Co. Ltd LDK Solar Hi-Tech (Suzhou) Co. Ltd ||             91,9 %

JingAo Solar Co. Ltd Shanghai JA Solar Technology Co. Ltd JA Solar Technology Yangzhou Co. Ltd Hefei JA Solar Technology Co. Ltd Shanghai JA Solar PV Technology Co. Ltd ||             97,5 %

Jinzhou Yangguang Energy Co. Ltd Jinzhou Huachang Photovoltaic Technology Co. Ltd Jinzhou Jinmao Photovoltaic Technology Co. Ltd Jinzhou Rixin Silicon Materials Co. Ltd Jinzhou Youhua Silicon Materials Co. Ltd ||             53,8 %

Wuxi Suntech Power Co. Ltd Suntech Power Co. Ltd Wuxi Sun-Shine Power Co. Ltd Luoyang Suntech Power Co. Ltd Zhenjiang Ren De New Energy Science Technology Co. Ltd Zhenjiang Rietech New Energy Science Technology Co. Ltd ||             73,2 %

Yingli Energy (China) Co. Ltd Baoding Tianwei Yingli New Energy Resources Co. Ltd Hainan Yingli New Energy Resources Co. Ltd Hengshui Yingli New Energy Resources Co. Ltd Tianjin Yingli New Energy Resources Co. Ltd Lixian Yingli New Energy Resources Co. Ltd Baoding Jiasheng Photovoltaic Technology Co. Ltd Beijing Tianneng Yingli New Energy Resources Co. Ltd Yingli Energy (Beijing) Co. Ltd ||             93,3 %

Other cooperating companies (Annex I, Annex II) ||             88,1 %

All other companies ||             111,5 %

D.        INJURY

1.           Definition of the Union
industry and Union production

(133)   The
like product was manufactured by around 215 producers in the Union. The Institutions have verified claims by interested parties that
there was a higher number; this verification has revealed that the alleged
additional producers were in reality mostly exporting producers, importers
related to those, distributors and installers.

(134)   Following
the provisional disclosure, several parties contested the fact that data
provided by Europressedienst, an independent consultancy firm ('the
consultant'), were used to determine, inter alia, Union production, Union
production capacity as well as other macroeconomic injury indicators concerning
the Union industry and import data. These parties questioned the independence
of the consultant alleging that it was linked to the complainant. They also
requested clarifications on what basis the consultant was selected by the
Commission and questioned its expertise in collecting economic data related to
the PV sector. In this regard, it was claimed that the Commission should have
based its findings on data from other available sources, in particular known research
institutes. Lastly, a reference to Best Practices
for the submission of economic evidence and data collection in cases concerning
the application of Articles 101 and 102 TFEU and in merger cases was made by
AFASE to contest the reliability of the data submitted by the consultant.

(135)   As regards the alleged links
between the consultant and the complainant, the relevant interested parties did
not submit any evidence showing the existence of such links. Likewise, the
investigation did not bring into light any evidence of a relationship going
beyond purely commercial character. Following final disclosure one interested
party claimed that there were indications that the prima facie evidence
provided by the complainant Union industry in the complaint were based on data
provided by the same consultant. Even though it is acknowledged that findings
for some indicators were indeed similar to the evidence provided in the
complaint that does not necessarily mean that they were established on the
basis of one source only. In this regard, the complaint provides the various
sources used.

(136)   As
explained in recital (99) to the provisional Regulation, the Commission
considered it appropriate to make use of this consultancy in the current
investigation, due to the unavailability from other public sources of the
necessary macro-economic data covering the total Union market as well as import
data. Prior to selecting Europressedienst the Commission assessed the
methodology used by the consultant for the collection of the relevant data as
well as the consultant’s ability to provide the necessary data separately for
all product types and for the entire period considered.

(137)   Furthermore,
during the investigation, data provided by the consultant were counter checked
when possible with other available sources and were confirmed. In this respect,
it is noted that several research companies specialised in collecting PV
statistics exist on the market and the figures reported are almost never
identical. This is due to the fact that precise figures are difficult to derive
for any research institute and therefore the reported PV market indicators will
always be based on estimates, independently of the provider of such figure. In
this context, the cross-checking exercise carried out by the Commission
consisted of comparing the trends of the data received from the consultant with
the trends of the same data published by other research companies, the
Commission's Joint Research Center ('JRC') and the European Photovoltaic
Industry Association ('EPIA') on the same topics, when available. No
significant differences were noticed as a result of the cross-checking exercise
as the trends of the indicators for which the cross-checking was done were
similar. Provisional findings were therefore not solely based on data provided
by the consultant but also on the Commission’s own analysis and assessment of
these data. In addition, as mentioned above in recital (9), after the
imposition of provisional measures a verification visit took place at the
premises of the consultant. The Commission carried out the on-the-spot check at
the consultant’s premises to verify the reliability of the methodology and data
supplied. The on-the-spot check was carried out as a follow-up of the
cross-checking of the data by the Commission and to obtain further assurance as
regards the reliability and quality of the data and related methodology. The
on-the-spot verification was considered appropriate in application of the
principle of good administration, even if those data were not provided by an
interested party but by a consultant. As a result, the Commission was further
reassured of the reliability of the data provided by the consultant.

(138)   One party claimed that the
methodology of cross checking used by the Commission was not explained in
sufficient detail and requested that the other sources used for the cross
checking should be disclosed. This party argued further that the methodology
used was in any event invalid insofar that only trends of various sources were
compared and not absolut values.

(139)   As far as the other sources
used to cross check the data provided by the consultant are concerned, they
were the reports published by the 'JRC and EPIA on the same topics. As for the
comparison of data with other sources it is noted that they showed not only
similar trends but also similar magnitudes. Therefore, it was concluded that
the methodology used was appropriate and the claims in this regard were
rejected.

(140)   As
to expertise of the consultant, it is noted that its main activity is
collecting data linked to the PV sector and developing an up-to-date database
of companies active in the PV market. These data are published in specialised
photovoltaic magazines and also used by individual companies for which it carries
out specialised research. The database developed by Europressedienst is
regularly up-dated and re-published. In addition, the consultant has several
years of experience in this sector. More precisely, the methodology of the
consultant is to collect, cross-check and agglomerate information using various
sources available in the market. To this end, it collects the data via standard
questionnaires sent to the companies listed in the database or via phone,
especially from the Union producers, or during the specialised fairs, notably
from producers in third countries. When the information cannot be obtained
through the channels just mentioned, Europressedienst checks the financial
reports of companies in the photovoltaic sector or co-operates on a freely
basis with other research institutes with a view to obtaining or cross-checking
the data. It was verified and indeed confirmed that these sources were used by
the consultant in its daily activity. In the light of the above, it was
considered appropriate to make use of Europressedienst’s services in the
present investigation and the parties’ claims in this respect were therefore
rejected.

(141)   With regard to the Best
Practices for the submission of economic evidence issued by the competent
service of the Commission (‘the Best Practices’), the following remarks should
be made. First of all, it is a document that cannot engage the Commission, as
it has not been adopted by the College, but published by the competent service
with the purpose of providing recommendations to parties as to how to present
economic evidence. Secondly, the Best Practices concern the submission of
economic analysis and data used in some competition investigations, pursuant to
Article 101 and 102 TFEU and in merger cases. The applicable rules, standards
of proof and investigating powers of the Commission in those competition cases
cannot be compared to trade defence investigations, to which an entirely
different set of rules applies.

(142)   After the provisional
disclosure, several parties contested the methodology used by the consultant claiming
that it would not reach recognised scientific standards. However, as mentioned
above in recital (137), the methodology was assessed and the resulting data
were cross-checked and verified and as a result were considered in line with
other published data and therefore reasonably reliable. Specific
points raised by the interested parties, mainly AFASE were clarified and made
available in the open file of the investigation for inspection by interested parties.

(143)   The CCCME argued that the
methodology of data aggregation was not clarified. This claim was rejected as
the relevant information was made available to all interested parties in the
investigation file open for inspection by interested parties.

(144)   After final disclosure,
several parties reiterated their concerns on the selection of the consultant by
the Commission and on the quality of the data supplied. In this respect it was
claimed that the consultant’s data can be ordered and purchased on an ad hoc
basis to meet the specifically identified requests of potential clients and may therefore not be objective. In addition, CCCME
contested that the data collected by the consultant can be considered as
positive evidence within the meaning of Article 3(2) of the basic Regulation
since the data was to a large extent based on assumptions and estimations.
Furthermore, it was claimed that the data supplied were not sufficiently
supported by evidence in the file and that they were not of an affirmative,
objective and verifiable character.

(145)   In respect of these claims,
reference is made to the recitals (136) to (137) above where additional
information was provided regarding the selection of the consultant. In
addition, it is noted that the Commission hired the consultant on the basis of
the best available information at that moment in time and in full compliance
with the Commission Financial Regulation applicable to the procedure.
Furthermore, it is recalled that the consultant’s capacity to provide all the
needed data in due time was of great importance since the Commission was bound
to statutory deadlines for the publication of the provisional findings in the
on-going investigation.

(146)   As regards the quality of
the data supplied and whether it can be considered as positive evidence in
accordance with Article 3(2) of the basic Regulation, as mentioned above in
recital (137), the consultant’s methodology for collecting the data was
examined and it was assessed that it was of satisfactory quality. In addition,
as also mentioned above in the same recital, the data supplied by the
consultant were cross-checked when possible with other sources and found to be
reasonably accurate. Finally, it is noted that the consultant has one database
which is up-dated on a regular basis, independently of the clients’ needs and
requests. The same database is used to aggregate and deliver PV statistics to
various clients, and therefore the allegation that data were not objective had
to be rejected.

(147)   After final disclosure, one
interested party claimed that the Commission had not disclosed the sources, the
methodology used and the companies with which the consultant co-operated to
compile the macroeconomic data supplied. Another interested party reiterated
that the methodology applied by the consultant suggests inaccurate results.
Several interested parties requested further information concerning the
methodology used by the consultant such as the average response rates to the
questionnaires/interviews, the percentage of data collected through each
channel, how these were verified, the approximations/assumptions used to
generate the data, the number of companies for which approximations were made,
and at least a range of the number of employees of the consultant.

(148)   In respect of these claims,
it is noted that subsequently to the imposition of the provisional findings,
the Commission provided interested parties with the methodology and with the
sources used by the consultant in aggregating the data and addressed specific
questions of the interested parties in this regard following the provisional
disclosure. The additional requests for information of the interested parties
concerned following final disclosure are considered to be covered by the
information made available after the imposition of provisional duties to the
extent that the confidentiality limitations allowed it. In addition, it is
underlined that the Commission verified on-the-spot the way the data had been
collected and aggregated by the consultant and the relevant underlying
assumptions for aggregating the data. The results of the verification were
satisfactory and the Commission was reassured of the reasonableness of the
underlying assumptions and of the quality of the data supplied by the
consultant. Furthermore, the parties did not contest the data as such.

(149)   After
final disclosure, another party requested clarifications with regard to the
number of Union producers considered by the consultant in its data collection
and the overlap between these and the around 215 Union producers known to the
Commission. In this respect, it is clarified that the Union producers
considered by the consultant are largely the same than the ones known to
represent the Union industry in this investigation mentioned in recital (133)
above.

(150)   After final disclosure, one
party claimed that the Commission has conducted the injury analysis in an
inconsistent manner since it was done separately for modules and cells while
the injury and dumping margin calculations had been established as a weighted
average for modules and cells together. In this respect, it is noted that while
indicators were shown separately for each product type, the conclusions reached
for each indicator refer to the product under investigation as a whole. It is
also recalled that modules and cells are one single product and therefore the
dumping margins and the injury elimination level were established on this
basis. Therefore, the claim was rejected.

(151)   Finally, another party
claimed that the calculation of the values of macroeconomic indicators during
the IP was wrongly based on a simple average of the years 2011 and 2012 as such
methodology would not be objective and would not lead to results reflecting the
reality during the IP. It is clarified that a simple average of the data was
only used in case where there were similar trends in the periods concerned. In
case trends were different, the methodology was adapted accordingly by taking
into consideration market reality. The party concerned did not develop to what
extend the results of the methodology used would not reflect market reality.
These claimes were therefore rejected.

(152)   On the basis of the above, and in absence of any other
comments in this respect, the findings in recitals (98) to (101) to the
provisional Regulation are confirmed.

2.           Determination of the
relevant Union market

(153)   Several parties argued that
the injury should have been assessed separately for the captive market and for
the free market. One party argued that data relating to cells destined for
captive use should have been excluded from the injury assessment on the grounds
that they were not affected by the dumped imports.

(154)   As mentioned in recital
(105) to the provisional Regulation consumption, sales volume, production,
production capacity, capacity utilisation, growth, investments, stocks,
employment, productivity, cash flow, return on investment, ability to raise
capital and magnitude of the dumping margin should be examined referring to the
total activity of the Union industry, i.e. including captive use, as the
production destined for the captive market was equally affected by the
competition of imports from the country concerned.

(155)   Thus,
the investigation has shown that vertically integrated Union producers were
forced to import dumped products (cells) and to cease production of these
products at cost above the import price, as a consequence of the price pressure
exerted by the dumped imports. Furthermore, the investigation also revealed
that the free market and the captive market displayed similar trends in prices,
which also showed that they were equally affected by the imports concerned.

(156)   After final disclosure,
several parties reiterated that the Commission failed to provide an adequate
and reasoned analysis of the captive market or why a separate analysis had not
been carried out. One party claimed that no information was provided about the
significance of the Union production destined for captive use. In addition, it
was claimed that recital (106) to the provisional Regulation concluding that
prices in the captive market did not always reflect market prices, contradicted
the conclusions set out in recital (155) above that the free market and captive
market displayed similar trends in prices.

(157)   It is firstly noted that
recital (105) to the provisional Regulation sets out the reasons as to why it
was considered appropriate to examine injury indicators (except for
profitability) referring to the total activity of the Union industry including
captive use. In this regard it is recalled, as set out in the same recital,
that the investigation revealed that the production destined for captive use
was equally affected by the competition of the imports from the PRC, which as
such was not contested by the interested parties concerned. Therefore, the
claim that no explanations were given as to why no separate analysis took place
had to be rejected. Likewise, as it follows from this conclusion, it had also
to be rejected that such separate analysis of the captive market should have
taken place.

(158)   Secondly, while on the basis
of the above the significance of the Union production destined for captive use
was not considered an essential element, it is noted that the Union production
of cells destined for captive use represented about half of the total
production in the IP. Finally, it is clarified that the fact that prices in the
captive market do not reflect the prices in the free market is not necessarily
contradicting the fact that both prices followed the same trends, as they may
still be at different levels or price movements may be at a higher or lower
degree and thus depicting a different picture. On the basis of the above, the
claims concerning the captive market were rejected.

(159)   The parties concerned did
not provide any information which could have devaluated the findings concerning
the determination of the Union market. On these grounds, the claims in this
respect were rejected and the findings as set out in recitals (102) to (106) to
the provisional Regulation are confirmed.

3.           Union consumption

(160)   One interested party argued
that data concerning the Union consumption of the product under investigation
vary significantly, depending on the source used. This party argued that
reliable data can only be established on the basis of the information gathered
from specialised institutions or research centres. In view of the explanations
and conclusions reached in the recitals (134) to (152) above, concerning the
reliability of the data provided by the consultant used in the investigation,
this argument was rejected.

(161)   The same party argued that
Union consumption should not be established by merely adding up available
module production capacities in the Union and that the module consumption of
the Union industry’s own projects should be deducted therefrom. This argument
was rejected, as consumption of modules was established on the basis of newly
installed capacities in the Union. This is a common practice for determining
the module consumption. For cells the consumption was determined on the basis
of the Union production of modules.

(162)   Another party argued that
that the methodology described by the consultant admits the difficulty to
establish reliable consumption figures. It was further argued that import data
as well as export sales from the Union industry were either based on
unverifiable estimations or incomplete data and that the cross checking of the
Commission was not sufficient to allow the conclusion that those data were
indeed reliable and accurate.

(163)   As already mentioned above
in rectials (136) and (137) above the quality of the data and the methodologies
used to collect them were verified by the Commission during an on-spot visit on
the basis of which it was considered that the methodologies used were
appropriate and the results accurate and reasonably reliable. This claim was
therefore rejected.

(164)   On this basis, and in the
absence of any other comments with respect to the Union consumption, recitals
(107) to (109) to the provisional Regulation are confirmed.

4.           Imports from the country
concerned

4.1.        Volume and market share of
the imports from the country concerned

(165)   One interested party argued
that data concerning import volumes of the product under investigation vary
significantly, depending the source used. This party argued that reliable data
can only be established on the basis of the information gathered from
specialised institutions or research centres. In view of the explanations and
conclusions reached in the recitals (134) to (152) above, concerning the
reliability of the data provided by the consultant used in the investigation,
this argument was rejected.

(166)   After final disclosure, one
interested party contested the methodology to determine the total import value from
the PRC claiming that it had been based on transactions made at CIF level duty
unpaid and it is therefore doubtful whether these transactions had been
destined for Union consumption. In respect of this claim, it is clarified that
the total import value from PRC as provided by the consultant had not been used
in the provisional and definitive findings and that only import volumes and
import prices were determined during the investigation as shown in recitals
(110) to (113) to the provisional Regulation. As the methodology to determine
import prices was not contested as such by the interested party concerned
reference is made to the relevant findings in recital (113) to (117) to the
provisional Regulation and recitals (168) to (176) below. Therefore, the above
claim was rejected.

(167)   On
this basis, and in the absence of any other comments with respect to imports of
the product concerned from the PRC, recitals (110) to (112) to the provisional
Regulation are confirmed.

4.2.        Prices of imports and price
undercutting

(168)   One
cooperating unrelated importer claimed that import prices should have been
established on the basis of its imports of the product concerned in the Union.
However, the data provided by this importer during the investigation only
represented a fraction of the total imports in the Union and no meaningful
conclusions could be drawn as to the average import price of all imports from
the PRC during the whole period under consideration covering several years.
Therefore, this claim was rejected.

(169)   Another party claimed that
the methodology to determine the prices was not explained, in particular as to
how the data of various sources had been merged and reconciled. In addition it
was argued that importation costs should have been based on the verified
information collected during the investigation rather than on estimates.

(170)   It is considered that the
methodology made available to interested parties is sufficiently complete to
understand as to how figures were established. As far as ‘importation’ cost is
concerned, it is clarified that an adjustment was made to on-the-spot-prices to
arrive to CIF prices. The estimation made was confirmed with the data collected
during the investigation.

(171)   Following the provisional
disclosure, several interested parties requested more details on the price
undercutting calculations than those already provided in recital (116) to the
provisional Regulation. Insofar as the sensitive nature of this information and
the fact that the Union producers had been granted anonymity would allow it,
additional information was provided in bilateral disclosures.

(172)   In line with the decision to
exclude wafers from the product scope (see recitals (28) to (32) above), these
products were also excluded from the calculation of the price undercutting.
Moreover, there were some corrections on the CIF prices provided by the
interested parties. As the sample of unrelated importers was revised for the
reasons explained in recital (21) the average post-importation costs of the new
sample of importers was used, when data was available and complete.

(173)   The revised price comparison
was made on a type-per-type basis for transactions at the same level of trade,
duly adjusted where necessary, and after deduction of rebates and discounts.
The result of the comparison, when expressed as a percentage of the sampled
Union producers’ turnover during the IP showed weighted average undercutting
margins within the ranges of 19,8% - 32,1% for modules, 4% - 28,5% for cells
and 8% - 29% in overall terms for the product concerned.

(174)   It should be noted that for
one sampled exporting producer, a negative price undercutting for cells was
established. However, the exported quantities were not significant and can thus
not be considered representative.

(175)   One sampled exporting
producer contested the source for the adjustment for mono cells to multi cells,
without however substantiating the argument. Indeed no new information or
evidence was provided and this claim was therefore rejected.

(176)   In
the absence of any other comments with respect to the prices of imports from
PRC and on the price undercutting calculations, recitals (113) to (117) to the
provisional Regulation are confirmed as amended above.

5.           Economic situation of the
Union industry

5.1.        General

(177)   Some parties questioned the
overall reliability of the macroeconomic injury indicators used by the
Commission for the purpose of this investigation. They argued that the trends
established for a number of these indicators diverged from the trends for the
same indicators established for the sampled Union producers. Particular
reference was made to Union production, productivity, sales, average labour
costs and employment.

(178)   As mentioned in recital
(121) to the provisional Regulation the macroeconomic indicators were
established in relation to all producers in the Union. In case the same data
are compiled in relation to individual Union producers or a group of Union producers
(i.e. the sampled Union producers), the trends are not necessarily identical,
as e.g. the weight of each company considered is not taken into consideration
in such comparison. Therefore, the results of the exercise of comparing the
macroeconomic indicators for all Union producers and those for sampled Union
producers are not necessarily meaningful and do not allow for the conclusion
that the one or the other set of data is unreliable. In any event, when
comparing the trends of the macroeconomic indicators of the Union industry with
the consolidated same indicators of the sampled Union producers, differences in
trends can be noted for several indicators, such as the production, production
capacity, sales volumes, employment and productivity of the Union industry
between 2011 and the IP. For all these indicators, the sampled Union producers
performed better than the overall Union industry. The reason behind is that in
the IP many Union producers, not included in the sample, stopped their
production or became insolvent, thus having a negative impact on the
macroeconomic indicator calculated at the Union level. These claims were
therefore rejected.

(179)   One interested party claimed
that the conclusion as set out in recital (153) to the provisional Regulation
that the analysis of the situation of the Union industry showed a clear
downward trend of all main injury indicators was based on data provided by the
consultant. In this respect, it is clarified that, on the one hand, the macroeconomic
indicators, as listed in Tables 4-a to 6-c to the provisional Regulation, were
based on data obtained from the consultant and cross-checked when possible with
other available sources. On the other hand, the microeconomic indicators, as
listed in the Tables 7-a to 11-c to the provisional Regulation, were based on
data collected from the sampled Union producers and verified on-the-spot by the
Commission. It should also be noted that determinant factors for the injurious
situation of the Union industry such as the profitability levels of the Union
industry, the average sales price in the Union as well as price undercutting
calculations were based on data collected from the sampled Union producers and exporting
producers as verified on-the-spot. The above claim was therefore rejected.

(180)   In the absence of any other
comments regarding the general methodology of the assessment of the economic
situation of the Union industry, recitals (118) to (123) to the provisional
Regulation are confirmed.

5.2.        Macroeconomic indicators

5.2.1.     Production, production
capacity and capacity utilisation

(181)   AFASE
claimed that the production volume established for modules in recital (124) to
the provisional Regulation and the production capacity of the Union industry established
for modules and cells in the same recital were overestimated and provided data
from other sources (i.e. EPIA, IMS and BNEF) showing lower volumes.

(182)   The production volume established in recital (124) to the
provisional Regulation is based on information covering both publicly listed
companies and non-listed companies. The development of the Union production as
established in recital (124) to the provisional Regulation is in line with the
development of Union consumption established in recital (108) to the
provisional Regulation. To the contrary the data provided by AFASE on production
volumes showed different trends with the Union consumption as established in
recital (108) to the provisional Regulation and with the statistics of Union
consumption published by the EPIA.

(183)   As
far as production capacity is concerned, the investigation revealed that the
findings as set out in recital (124) to the provisional Regulation included the
production capacities of companies that filed for insolvency or stopped
production during the IP, while they had not sold their production plants and
machinery and thus were able to resume production very quickly. Likewise, as
mentioned above in recital (182), the figures in recital (124) to the
provisional Regulation included data from non-listed companies.

(184)   Finally, as mentioned above
in recital (137) above, the data provided by the independent consultant were
verified and found to be reasonably accurate. On the basis of the above, the
data provided by AFASE based on other available sources were not found to be
necessarily in contradiction with the provisional findings.

(185)   In any event, accepting the
figures provided by AFASE would not have an impact on the overall finding that
the Union industry suffered material injury as the negative trend of these indicators,
i.e. Union production and Union production capacity would be even more
pronounced.

(186)   One cooperating unrelated
importer argued that production volume, production capacity and capacity
utilisation should have been established on the basis of the data of the
sampled Union producers only. However as these are macroeconomic indicators
they should be established at the level of all Union producers in order to
establish a meaningful and complete picture of the situation of the Union
industry. This claim was therefore rejected.

(187)   After final disclosure, one
party requested the Commission to clarify how the annual Union production had
been calculated by the consultant. Another party requested the Commission to
give further explanations concerning the reconciliation of the different data
available related to the total Union production capacity. Another party
suggested that the total Union production and production capacity should have
been obtained from the Union producers selected in the sample as this would
have given a more reliable result. In this regard, it was alleged that publicly
available data were imprecise due to the confidential character of these data
and that any research centre or consultant had to base its analysis on a number
of estimations and assumptions.

(188)   It is clarified that the
annual Union production was calculated on the basis of the figures reported by
the Union producers to the consultant. When the annual production of a certain
Union producer could not be obtained for a specific year, this was estimated by
applying the capacity utilisation rate from the previous year to the new
production capacity of that year. The Institutions have also compared the
figure obtained by the consultant with the figures reported in the replies of
the Union industry to the standing questionnaires prior to initiation. Both
figures are similar.

(189)   As regards the request to
provide further explanations concerning the reconciliation of the different
data available for Union production capacity, it is noted that this information
had already been provided in the open file open for inspection to the
interested parties. Therefore, this request was rejected.

(190)   Finally, the Union
production and production capacity are macroeconomic indicators and therefore have
to be established at the level of the entire Union industry rather than on the
level of the sampled Union producers.

(191)   After final disclosure, one
party argued that the methodology used to collect production data (mainly
interviews and visits of production sites) did not allow for reliable results
due to the confidential character of these data and as a consequence the
reluctance of companies to disclose them. Such methodology cannot therefore be
considered as adequate. This was allegedly confirmed by the fact that although
a much higher number of Union producers was used by the consultant than the one
taken into account by the Commission during the examination of standing at
intiation stage, the total production volume established by the consultant is
lower than the total production volume established by the Commission for the
purpose of the examination of the standing. This party further claimed that
consequently the information related to this injury idicator cannot be
considered as positive evidence within the meaning of Article 3(2) of the basic
Regulation.

(192)   It
is first clarified that the number of producers taken into consideration by the
consultant on the one hand and the Commission on the other hand was largely the
same and that the argument that results were inconsisntent had therefore to be
rejected. It is further recalled that the data collected by the consultant were
cross checked with other sources wherever possible and it was found that the
estimations were sufficiently reliable. It is therefore confirmed that the information
on production data provided by the consultant was considered as positive
evidence within the meaning of Article 3(2) of the basic Regulation.

(193)   In the absence of any other
comments regarding production, production capacity and capacity utilisation,
recitals (124) to (128) to the provisional Regulation are confirmed.

5.2.2.     Sales volumes and market
share

(194)   One interested party claimed
that the market share of the Union industry for modules was already only 19% in
2009 and that a decrease by 6 percentage points during the period considered
cannot be considered as injury.

(195)   The decrease in market share
by 6 percentage points over the period considered has to be seen against the
background of an increase of the Union consumption for modules by over 200%
over the same period. The Union industry could not benefit from the increased
consumption; to the contrary, even under the scenario of an increased
consumption it could not increase its sales volume accordingly and suffered
losses in market share. This argument had therefore to be rejected.

(196)   One party argued that the
methodology used to collect sales data (mainly interviews and visits of
production sites) did not allow for reliable results due to the confidential
character of these data and as a consequence the reluctance of companies to
disclose them. Such methodology cannot therefore be considered as adequate.
Likewise, they cannot be considered as positive evidence within the meaning of
Article 3(2) of the basic Regulation. As mentioned above in recital (137) above
the data collected by the consultant were cross checked with other sources wherever
possible and it was found that the estimations were sufficiently reliable. It
is therefore confirmed that the information on sales data provided by the
consultant was considered as positive evidence within the meaning of Article
3(2) of the basic Regulation.

(197)   In the absence of other comments
on the Union industry’s sales volume and its market shares, recitals (129) to
(131) to the provisional Regulation are confirmed.

5.2.3.     Employment and productivity

(198)   Following final disclosure,
one party claimed that the methodology to establish total employment in the
Union during the period considered was incorrect. This party alleged that wherever
the employment rate of a specific Union producer was not available, the average
employment of those Union producers for which this information was available
was taken into consideration instead. This had to be rejected as the
methodology to establish total employment was different, i.e. in case
employment data for a certain Union producer was not available, this figure was
estimated on the basis of data of that same company from the previous year(s).
As mentioned above in recital (137) this methodology was verified and found
reasonable. Therefore, the claim was rejected.

(199)   In the absence of any
comments concerning the level of Union industry’s employment and productivity,
recitals (132) to (134) to the provisional Regulation are confirmed.

5.2.4.     Magnitude of the dumping
margin and recovery from past dumping

(200)   In the absence of any
comments in this respect, recitals (135) to (136) to the provisional Regulation
are confirmed.

5.3.        Microeconomic indicators

5.3.1.     Prices and factors affecting
prices

(201)   One interested party
contested the findings that the decrease of the average sales prices had a
devastating effect on the profitability of the Union industry. It claimed that
the average cost of the Union industry decreased equally and that therefore a
decrease in price is natural. However, as described in recital (138) to the
provisional Regulation, the investigation established that the Union industry
sales price decreased even more than its average cost of production and
therefore such decrease in costs was not reflected in the Union industry’
profitability. It is therefore confirmed that the decrease in sales price of
the Union industry had a devastating effect on the profitability of the Union
industry and the claims in this regard were rejected.

(202)   Another party contested the
conclusion in recital (138) to the provisional Regulation that prices were at
unsustainable levels in the IP, claiming that this would be for market forces
to decide. The same party also objected to the conclusion in the same recital
that the Union industry was not able to benefit from cost decreases due to the
price pressure of the dumped imports. In this regard, the Institutions observe
the following: "unsustainable level" refers to the fact that the
Union industry was selling at loss, and therefore could not survive in the long
term. The question whether the price level is sustainable is therefore only a
question of the relationship between production costs and prices. By "not
being able to benefit from cost decreases", it is referred to the fact
that costs fell less quickly than prices. Both those statements are backed up
with evidence in recital (138) to the provisional Regulation. Therefore, this
argument had to be rejected.

(203)   In absence of any further
comments concerning the Union industry’s average sales prices recitals (137)
and (138) to the provisional Regulation are confirmed.

5.3.2.     Labour costs

(204)   The same interested party
claimed that in contrast to what is stated in recital (140) to the provisional Regulation,
there has not been any inflation during the period considered and that
therefore the overall increase of labour costs could not have been caused by
this factor.

(205)   In contrast to what was
claimed by the party concerned, the investigation revealed that there has been
inflation during the period considered and that the increase in labour cost, limited
to modules, can be explained by inflation and increase in productivity.

(206)   One interested party claimed
that the injurious situation of the Union industry was caused by the increase
in labour costs and the parallel decrease in productivity. However, first it
should be noted that labour cost remained stable in case of cells, while
productivity increased both for cells and modules. Therefore, the increase of
the latter can be explained by increased productivity. Moreover the
investigation has shown that labour costs do not represent a significant part
of the cost of production, as already cited in recital (203) to the provisional
Regulation. Therefore, this argument had to be rejected.

(207)   On this basis, the findings
in recitals (139) and (140) to the provisional Regulation are confirmed.

5.3.3.     Inventories

(208)   One interested party claimed
that, the increase in stock levels over the period considered, when expressed
as a percentage of the total production, would be insignificant and cannot
therefore be seen as evidence for injury. This party argued further that the
presentation of the stock values in recital (141) to the provisional Regulation
is misleading as stocks were expressed in kW rather than MW unlike the Union
industry’s production volume.

(209)   In this respect, it is noted
that recital (143) to the provisional Regulation shall be amended and should
read ‘... the increase in stocks for the like product over the period considered
is not a relevant factor in establishing if the Union industry suffered
material injury’. The existence of a clerical error becomes clear from the
preceding sentence which concludes that the Union producers tend to hold
limited stocks as their production is based on orders.

(210)   Finally, whether stocks are
expressed in kW or in MW as such was considered irrelevant in the determination
whether or not the Union industry suffered material injury.

(211)   After final disclosure,
several parties claimed that stocks should have been determined for the whole
Union industry and that the figures of only ten Union producers were not
representative. It is clarified that the stocks were considered as a
microeconomic indicator and should therefore be established on the basis of the
information collected on a per company basis, in this case from the sample of
Union producers considered as representative for the whole Union industry. The
above claim was therefore rejected.

(212)   In absence of any other
comments concerning inventories, recitals (141) to (143) to the provisional
Regulation are confirmed.

5.3.4.     Profitability, cash flow,
investments and return on investments, ability to raise capital

(213)   Following a comment by an interested
party it is clarified that the statement that cash flows followed a
“progressively negative trend” between 2009 and the IP in recital (148) to the
provisional Regulation was wrong as cash flows for modules, while decreasing
between 2009 and 2010, were in fact increasing in 2011 and decreasing again in
the IP.

(214)   The same party alleged that
investment figures as shown in recital (149) to the provisional Regulation were
too low when compared to the production capacity of the Union industry as shown
in recital (124) to the provisional Regulation. In support of this claim the
party submitted to be aware of the investment made by one Union producer in
capacity increases which was at a much higher cost. The party concerned
concluded that therefore the established production capacity of the Union
industry must have been overestimated. It is noted that this claim was not
supported by any evidence, in particular as regards the investment made by the
Union producer in question. In contrast, the investment figures in the
provisional Regulation were based on actual and verified information from the
sampled Union producers. It should be noted that this claim was also based on
the comparison between the total investments of the sampled Union producers and
the total production capacity of the whole Union industry, which cannot be
considered an appropriate basis for comparison as not the total investments of
the whole Union industry were taken into consideration. Therefore, this
argument had to be rejected.

(215)   In absence of any other comments
concerning profitability, cash flow, investments and return on investments,
ability to raise capital recitals (144) to (152) to the provisional Regulation are
confirmed.

5.4.        Conclusions

(216)   In the light of the foregoing
the conclusions set out in recitals (153) to (158) to the provisional
Regulation, i.e. that the Union industry suffered material injury within the
meaning of Article 3(5) of the basic Regulation, are confirmed.

E.         CAUSATION

1.           Introduction

(217)   After
the provisional disclosure, several interested parties claimed that the
causation analysis conducted did not separate, distinguish and quantify the
injurious effects of the dumped imports from the effects of other known factors
which at the same time are injuring the Union industry. Moreover, it was
claimed that the Commission failed to undertake a collective analysis of these
other known factors.

(218)   In reply to this claim it
should be noted that the Commission, as per established practice, first examined
whether there is a causal link between the dumped imports and the injury
suffered by the Union industry and secondly examined whether any of the other
known factors had broken the causal link established between the material
injury suffered by the Union industry and the dumped imports. In this analysis,
the effects of the other known factors on the situation of the Union industry were
assessed, distinguished and separated from the injurious effects of the dumped
imports to ensure that injuries caused by these factors were not attributed to
the dumped imports. It was found that none of them had a significant impact, if
any, on the situation of the industry that could reverse the fact that the
material injury assessed must be attributed to the dumped imports. On these
grounds the argument was dismissed.

(219)   Following the final
disclosure, several interested parties reiterated the above arguments. In this
regard it was claimed that the Commission should establish explicitly, through
a reasoned and adequate explanation, that the injury caused by factors other
than the dumped imports is not attributed to these imports.

(220)   In this investigation, it
was concluded, after examining all the facts, that the dumped imports taken in
isolation have caused material injury to the Union industry. In this respect, quantifying
the effects of other known factors was not possible and therefore a qualitative
assessment was carried out as set out in recitals (164) to (222) to the
provisional Regulation. In conclusion, it was confirmed that the material
injury of the Union industry was caused by the dumped imports. Indeed the
effects of other factors on the Union’s industry’s negative development were
considered to be limited. It should be noted that, under Article 3(6) and (7)
of the basic Regulation, no obligation is imposed as to the form of the
attribution and non attribution
analyses which should be carried out. On the contrary, under Article 3(6) and
(7) of the basic Regulation, those analyses must be carried out in such a way
as to enable the injurious effects of the dumped imports to be separated and
distinguished from the injurious effects caused by other factors. The
investigation did not reveal any evidence that all other known factors which
may have contributed to the injury suffered, together or in isolation, broke
the causal link between the dumped imports and the material injury suffered by
the Union industry. Given the above analysis, it was confirmed that other known
factors were not such as to reverse the finding that the material injury
suffered by the Union industry must be attributed to the dumped imports. On
these grounds these arguments were dismissed.

(221)   After
the provisional disclosure some interested parties objected to the finding in
recital (160) to the provisional Regulation. They reiterated that market
conditions of the product under investigation differ per Member State and that
therefore the causation analysis should be made at the level of each Member
State separately. In addition, these parties argued that the national support
schemes, the sun exposure and the electricity prices (including regulatory
charges) differ per Member State and that furthermore there are different
market segments in each market (the residential- installations of less than 40 kW,
commercial and industrial- installations between 40 kW and 1MW and the utility
market segment- installations between 1 MW and 10 MW). In view of this they
claimed that the causation analysis should be conducted separately for each
Member State on the one hand and for the large-scale and the residential
segments on the other hand.

(222)   After the final disclosure
some interested parties reiterated their claim that the causation analysis
should be conducted on a per Member State basis, without however providing
further arguments or new evidence in this respect.

(223)   The
investigation has shown that sales and import prices are similar across the
Union. It can therefore be considered that there is indeed one market for the
product under investigation. The investigation did also not reveal that
producers in each Member State or region concentrated their activities in this
specific market or that the dumped imports concentrated in one Member State or
region. Moreover, none of the interested parties argued that dumping and injury
should be analysed on a per Member States basis which would however be a
pre-condition for conducting a separate causation analysis per Member State.
The investigation did not reveal any evidence that this would have been an appropriate
approach, in particular given that there were similar prices across the Union
of the product under consideration at Union level. Moreover, it is noted that
the sun exposure can be different in different regions of the same Member
States, e.g. Southern France has more sun exposure than Northern France, or
different regions within one Member State can have different support schemes
(e.g. Belgium) and that therefore the impact of these factors on the demand may
vary from one region to another within the same Member State. However, the
differences in the regulatory framework of each Member State and/or region and
the differences in conditions such as sun exposure do not warrant a separate
causation analysis, and thus separate injury and dumping analysis. Therefore,
these arguments had to be rejected.

(224)   Another interested party
argued that while other factors are relevant, the national support schemes
remain the main factor in determining the demand. The same party also contested
that grid parity was already reached in some locations arguing that prices of
modules increased since the IP while electricity prices decreased. It further
argued that, in any event, at least in certain Member States, the regulatory,
economic and technical conditions do not allow for the connection to the grid
and for those Member States it was therefore irrelevant whether or not grid
parity was reached. This party however did not provide any supporting evidence
for the above allegations. In any event the above arguments confirm that the
situation with regard to national support schemes as well as grid parity may be
different to a certain extent between Member States. However, none of the
information submitted was of such a nature as to show that an analysis
separately per Member State would be warranted.

(225)   Following the final
disclosure, the same interested party reiterated the claim and provided some
information allegedly showing the different market conditions per Member State
and per segment. However, the information submitted could not be considered as
conclusive as it consisted of a power point presentation without any supporting
evidence, and therefore, did not show that an analysis separately per Member
State would be warranted. The claim of this party was therefore rejected.

(226)   On
this basis, it was concluded that an analysis of the causation per Member State
and/or region and per segment would not correspond to market reality. In
absence of any other comment in this regard the findings made in recitals (159)
and (160) to the provisional Regulation are confirmed.

(227)   The GOC claimed that the
Commission has conducted the causation analysis in an inconsistent manner as
the injury analysis was done separately for modules and cells, while the
causation analysis did not separate between product types. In this respect, it
is noted that while the injury indicators were indeed shown separately for each
product type, the conclusions reached for each indicator refer to the product
under investigation as a whole. It is also recalled that modules and cells are
one single product and therefore the causation analysis was conducted on this
basis. Therefore, the claim was rejected.

2.           Effect of dumped imports

(228)   One interested party
contested that there was a sufficient correlation between the dumped imports of
the product concerned from the PRC and the material injury suffered by the
Union industry. It was argued that this would be supported, on the one hand, by
the fact that from 2009 to 2010 the Union industry’s profit margin for cells
significantly increased (from loss making to 12% profit) while Chinese imports
were 36% lower priced than Union industry’s prices and doubled their market
share during the same period. On the other hand, between 2010 and 2011 Chinese
imports only gained 6 percentage points of market share, even though
consumption increased much more during the same period, while the Union
industry realised nonetheless a loss of 36%. This party argued further that as
regards the IP, imports of cells from other third countries were at the same
price level as Chinese imports but gained more market share corresponding to
the loss of market share of the Union industry.

(229)   The investigation showed
that there was a constant increase of Chinese market share for all product
types over the period considered (17 percentage points for modules, 17
percentage points for cells). Dumped imports from the PRC increased by more
than 300 % for modules and by 482 % for cells. At the same time there was a
considerable and constant decrease of the Chinese import prices (64 % for
modules and, 42 % for cells during the period considered) and in the IP they
were significantly undercutting the Union industry’s prices. In parallel, the
Union industry lost market share over the period considered and as described in
recitals (153) and (154) to the provisional Regulation all main injury
indicators showed a negative trend. Therefore it is confirmed that there is a
clear coincidence in time between the increase in dumped imports and the loss
of market share of the Union industry.

(230)   As shown in recitals (161)
and (162) to the provisional Regulation, this correlation in time was
established for all product types separately. In addition, the analysis of the
impact of the imports on the Union industry’s profit margin separately for each
year of the period considered does not lead to meaningful results as the
existence of dumping and material injury as well as a causal link between them
does not need to be established for each year separately. The correlation
between the dumped imports and the material injury is sufficiently demonstrated
when analysing the developments over the whole period considered.

(231)   It is also noted that the
profitability of the Union industry is one of the factors mentioned in Article
3(5) of the basic Regulation which should be investigated when examining the
impact of the dumped imports on the Union industry’s situation. The fact alone
that the Union industry was profitable during a specific year does not
necessarily mean that it did not suffer any material injury. Moreover, the loss
of the market share of the Union industry does not need to correspond exactly to
the increase of the market share of the dumped imports in order to establish a
causal link between the injury and the dumped imports. Finally, other factors
(e.g. imports of other third countries or development of the consumption) which
could have had an impact on the injurious situation of the Union industry were
examined and addressed separately in recitals (164) to (224) to the provisional
Regulation.

(232)   The coincidence in time of
increasing dumped imports in significant quantities, which undercut prices of
the Union industry and the increasingly precarious situation of the Union
industry is a clear indicator of causation in the present case, as established
in recitals (161) to (163) to the provisional Regulation. The claims with
regard to the lack of any correlation between the dumped imports and the
material injury suffered by the Union industry were therefore rejected.

(233)   Following the final
disclosure, the same interested party continued to contest the causation
analysis as the profitability of the Union industry was not analysed
specifically in relation to certain years (in particular 2010), but for the
whole period considered.

(234)   In this regard, it should be
noted that no valid conclusions can be drawn concerning causality by isolating
one specific year of the period considered while ignoring the development of
the Union industry during the entire period considered and its correlations
with the development of the dumped imports. Such analysis can only lead to a
partial picture and no sound conclusions can be drawn therefrom. Thus, the
profitability rates that drove also other financial indicators that the Union
industry achieved during 2010, was high because of the particularly strong jump
in Union consumption, driven by very generous support schemes, that allowed
Union industry to have their strongest sales improvement that same year, but
only of a temporary nature and in any event not sustainable for this type of
industry. Therefore, this argument had to be rejected.

(235)   In the absence of further
comments concerning the effect of dumped imports, the findings in recitals
(159) to (163) to the provisional Regulation are confirmed.

3.           Effect of other factors

3.1.        Imports from other third
countries

(236)   Several interested parties
made comments following the provisional disclosure with regard to the findings
concerning imports from other third countries and reiterated them following the
final disclosure. However, these parties did not bring into light new
information and supporting evidence which could have altered the relevant
provisional findings.

(237)   Those parties underlined in
particular the volume of imports of cells from Taiwan. However, the absolute
volume of imports of the product concerned from Taiwan (1132 MW) represents
only a very small share (less than 5%) of the overall Union consumption (21559
MW) and compared to imports from the PRC (15005 MW). Therefore, imports from
Taiwan have, if at all, only marginally contributed to injury of the Union
industry, and not broken the causal link.

(238)   In the absence of any other
comments with regard to imports from other third countries, the findings in
recital (164) to (167) to the provisional Regulation are confirmed.

3.2.        Development of the Union
consumption

(239)   One interested party claimed
that the Commission failed to analyse the impact of the development in
consumption. In this regard, it was argued that the imports from the PRC did
not capture the entire increase in consumption and that, while in the case of
modules the Union industry lost market share between 2009 and 2010, it still
increased its profitability during the same period. Furthermore, it was argued
that in 2009 when imports of cells from PRC had only 8% market share, the Union
industry still suffered 8% loss.

(240)   As mentioned in recital
(168) to the provisional Regulation, despite the decrease in Union consumption
in the IP, the dumped imports from the PRC either maintained their market share
(modules) or increased it (cells) to the detriment of the Union industry over
the period considered. Therefore, it cannot be concluded that the decrease in
consumption was such as to break the causal link between the dumped imports and
the injury suffered by the Union industry. Moreover, the investigation showed
that as the capacity of the Union industry was in any event much lower than the
levels of consumption, the shrinking consumption in the IP could not have had
an impact on the injurious situation of the Union industry. Therefore, this
claim was rejected.

(241)   Another interested party
contested that the demand in the Union will continue to exist even in the
absence of the national support schemes. This party argued that there is a
correlation between demand and support schemes and that in the absence of such
schemes projects in the PV sector would not be profitable anymore and therefore
the demand for solar panels will disappear as well.

(242)   As mentioned in recital
(169) to the provisional Regulation, during the investigation some indications
were collected that even in the absence of support schemes demand still existed
and will continue to exist in the Union. The party did not provide any evidence
which could have devaluated these findings. In the absence of any new
information in this regard, the findings set out in recital (169) to the
provisional Regulation are confirmed and the claim made in this regard was
rejected.

(243)   Following final disclosure, the
GOC argued that the fact that the Union industry’s capacity did in any event
not meet the Union demand is irrelevant since the sales volume of modules of
the Union industry decreased in line with the decrease in consumption and
reiterated that the decrease in consumption between 2011 and the IP caused the
material injury suffered by the Union industry. While indeed between 2011 and
the IP the Union consumption decrease and the sales volume of modules decreased
with a similar trend, this has to be seen in relation to the development of the
Chinese dumped prices, significantly undercutting the Union industry prices,
thus forcing the Union industry selling at losses. In this regard it is
recalled, as mentioned in recital (111) to the provisional Regulation, that the
dumped imports from the PRC either maintained their market share (modules) or
increased it (cells) when the consumption was decreasing. At the same time
Chinese import prices decreased significantly and substantially undercut the
Union industry’s sales prices. Therefore, this claim was rejected.

(244)   In the absence of any other
comments with regard to the development of Union consumption, the findings in
recitals (168) and (169) to the provisional Regulation are confirmed.

3.3.        Feed-in-tariffs ('FITs') as
the main example of support schemes

(245)   Following
the provisional disclosure several parties reiterated that the injury suffered
by the Union industry was caused by the development of the feed-in-tariffs (‘FITs’).
They claimed that the FIT developments exercised a strong downward pressure on
prices and therefore on the profitability of the Union industry. One interested
party claimed that only the impact of the development of FITs on the demand was
examined, while the impact on prices should also have been analysed. In the
same context, several interested parties argued that most of the Member States
implemented major cutbacks already in 2010 thus putting a downward pressure on
the module prices.

(246)   In
respect of this claim it should be noted that the Member States implemented FIT
cutbacks at different moments in time and at different speeds and that drawing
a general picture for the entire Union is rather difficult. Irrespective of the
moment when the FIT rates reached very low levels, the significant decrease in
the Union prices and profitability during the period considered cannot be
solely or mainly explained by the reduction of FITs. First, on the basis of the
information collected for Germany and Italy that represented together around
75% of the Union market in 2011, the drop in the average sales price was more
pronounced than the decrease in the FIT rates during the IP. Second, the
evidence collected shows that, for some countries such as Italy, even in the
context of very generous FIT rates, the Union industry had to decrease
significantly their prices. Finally, during the IP, the Union producers had to
sell at prices below their cost of production, which was mainly a consequence
of the fact that the Chinese exporting producers had 80% of the Union market
and therefore the power to influence the price-setting mechanism.

(247)   The
investigation further established that up to 2011 the higher FIT rates together
with the decrease in the prices of modules in the Union rendered the
investments in solar energy extremely attractive as investors were earning very
high rates on return. Therefore, this resulted in a high number of investments
and consequently high demand of solar panels. As a consequence of the increased
demand, the total amount of FITs paid increased significantly and most Member
States revised the existing FIT schemes downwards to avoid inter alia an
increase of electricity costs. This shows that FIT cutbacks may also have been
the result of the decreasing prices and not vice versa.

(248)   After final disclosure one
party claimed that there was a contradiction between the recital (246) above, that an assessment of the demand for the
Union as a whole is difficult, and the recital (223) above stating that a causation
analysis per Member State would not lead to meaningful results. In this
respect, it is clarified that in the assessment made in recital (246) above,
reference is made to the difficulty to draw a general picture of the FIT
developments for the entire Union and not to the Union demand as claimed by the
interested party. As a consequence, it follows that no contradiction exists
between the two recitals and therefore the claim was rejected.

(249)   After final disclosure, one
party claimed that even in the context of high FIT rates, the module price may
decrease significantly due to technological development, economies of scale,
cost reductions and growing global production capacity. In respect of this
claim, it is noted that the evidence collected shows that the Italian producers
had to reduce their prices below the cost of production even when FIT rates
were high. While the factors mentioned above may indeed have had an impact on
the average costs they cannot explain why Union producers had to reduce their
prices below their cost of production. Therefore, it is concluded that it was
mainly the dumped imports from the PRC that pushed the prices to unsustainable
levels and this claim was rejected.

(250)   After final disclosure, one
party claimed that the conclusion drawn in recital (247) above, that FIT
cutbacks may have also been the result of the decreasing prices and not vice
versa, is not supported by any evidence.

(251)   It is noted that the
conclusions drawn in recital (247) above were based on the information
available during the investigation and the scenario described was indeed
considered as reasonable given the circumstances in this specific market.
Therefore, this argument was rejected.

(252)   After final disclosure, one
party reiterated that it disagreed with the conclusion that the downward price
pressure on Union producers was mainly exerted by the dumped imports and
claimed that, to the contrary, it was the FIT cutbacks that forced the Union
producers to reduce their prices. The same party reiterated that when FITs were
reduced, the PV system prices decreased in line with the decrease in FITs so
that costs for project developers do not increase, which ultimately caused the
price pressure on the Union producers.

(253)   Since no conclusive evidence
was brought in support of these claims, the Commission maintained its analysis
and conclusions as stated in recitals (246) to (247) above.

(254)   The same party claimed that
markets are driven by the development of FITs and provided information showing
the number of PV installations for the years 2012 and 2013 in the UK. The
information provided by this party was a publication of the UK government based
on the weekly registrations in the UK Central FiT Register (CFR). It is noted
that this information related mostly to a period outside the IP and referred
only to one Member State, while the current investigation focused on the
situation of the Union market as a whole. In any event, it is not contested
that FIT levels influence demand, as the profitability of investments in
locations with less solar radiation depends on the FIT level. However, in order
to show that the level at which FIT were set during the IP has caused the
injury, interested parties would have had to show that a price increase of the
Union producers to the non-injurious level would have meant that the Union
producers would not have been able to sell the product concerned because
investments into PV systems would not have been viable at those price levels.
No such evidence has been provided. This argument was therefore rejected.

(255)   Therefore, the argument that
the reductions in FITs broke the causal link between the dumped imports and the
material injury suffered by the Union industry was rejected.

(256)   Following the provisional
disclosure one party reiterated that FIT developments rendered the solar
investment opportunities unattractive for investors and thus lowered the demand
for the product. Another party claimed that the findings set out in recital (173)
to the provisional Regulation that investments are still being made in Spain
despite the suspension of the FIT schemes was incorrect.

(257)   The impact of FITs on demand
was addressed in recital (173) to the provisional Regulation. As no new
arguments were brought forward in this respect, the above claim that demand
decreased due to the FIT developments was rejected. Regarding the investments
in Spain, it is clarified that the findings in recital (177) to the provisional
Regulation are based on information obtained during the investigation and
verified during an on-spot investigation. As the party concerned did not
provide any new information or evidence in this respect, this claim had to be
rejected.

(258)   Following
the provisional disclosure several parties claimed that in the context of the
low FIT rates, investments in PV projects were economically viable only when
supplied with the lower priced solar panels imported from the PRC. Therefore,
it was argued that the FIT cutbacks caused the material injury to the Union
industry. Another party argued that the level of the FIT rate influences the
price setting mechanism for modules.

(259)   It should be noted that the cost
of a module at which a project would still be economically viable varies by
Member State or by region in function of numerous factors such as FITs, other
regulatory incentives, solar exposure, conventional electricity prices, etc.

(260)   In
addition, the investigation showed that current installations depend less and
less on the FITs as PV grid parity is likely to have been reached for certain
types of installations in several regions in Europe, such as a large portion of
Italy, Spain, Portugal, southern France and Greece.

(261)   On the above grounds, the
claims made in this regard were rejected.

(262)   One interested party claimed
that the Commission did not investigate whether the Union industry failed to
anticipate that government support schemes would be abruptly withdrawn or
decreased. No arguments were brought in support of this claim. However, it
should be noted that, based on the evidence collected, there is no information
indicating that the Union industry responded to the market signals (i.e.
development in consumption) and other available information (i.e. reduction in
support schemes) in an unreasonable way. Therefore, this claim was rejected.

(263)   One
interested party argued that the FIT cutbacks caused the Union industry’s sales
decline because investments had been viable only at the affordable Chinese
prices. The evidence collected in fact shows only a slight decrease in the
sales of the Union industry during the IP, in contrast to what it would be
expected had the PV projects been feasible only with Chinese modules. On the
contrary, the sales of modules of the Union industry increased until 2011 and
then slightly decreased in the IP, following the same trend as of the
consumption. Therefore, this claim was rejected.

(264)   Another interested party
argued that the findings as set out in recitals (174) and (175) to the
provisional Regulation that the FIT changes did not break the causal link has
no factual or legal basis and is inconsistent with Article 3(7) of the basic
Regulation because the Commission failed to assess the level of injury caused
by the FIT reductions and because it considered that the significant drop in
the Union industry’s price had been a consequence only of the dumped Chinese
imports. The same party argued that the decrease in the price of modules, cells
and wafers was a global phenomenon and not due to the pressure of the Chinese
imports.

(265)   In respect of the claim that
the Commission failed to assess the level of injury caused by the FIT cutbacks,
reference is made to recitals (174), (175) and (182) to the provisional
Regulation and recitals (245) to (263) above, where the Commission concluded that
neither the decrease in demand nor the impact of FITs on Union prices were as
such as to break the causal link between the injury suffered by the Union
industry and the dumped imports from the PRC, irrespective of whether and to
which extent they were possibly caused by the FIT cutbacks. Therefore, the
claim that the Commission’s findings have no factual basis was rejected. As
regards the claim that the decrease in the price of modules and cells was a
global phenomenon, reference is made to the recitals (164) to (167) to the
provisional Regulation where import volumes and prices from other countries
than the PRC into the Union are assessed. While indeed there was a global
downward trend in the prices of modules and cells, the dumped import prices
from the PRC have exacerbated the downward trend to loss making levels. On the
basis of the above, this claim was rejected.

3.4.        Other financial support
granted to the Union industry

(266)   In the absence of any
comments concerning other financial support schemes granted to the Union
industry, the findings in recitals (184) and (185) to the provisional
Regulation are confirmed.

3.5.        Overcapacity

(267)   One interested party
reiterated the claim that the overcapacity in the global as well as in the
Union market caused the material injury rather than the imports from the PRC. In
this regard it was argued that the Union industry over-expanded its capacities
as evidenced by the low capacity utilisation rate and that therefore any injury
was self-inflicted. The alleged impact of the overcapacity in the Union and
world-wide was already addressed in recitals (185) to (190) to the provisional
Regulation and therefore in the absence of any new element the claim had to be
rejected.

(268)   Another interested party
claimed that the overcapacity led to price rationalization. In this regard, it
should be noted, on the one hand, that the overcapacity led in fact to a ‘race
to the bottom’ and the suppression of the prices of Union industry, which on
average exceeded the reduction of the costs of production. On the other hand,
as outlined in recital (186) to the provisional Regulation, the capacity
increases by the Union industry followed the market developments and were
considered reasonable. Moreover, the increase in production capacity of cells
was at a lower level than modules. The party concerned did not submit any new
information or evidence in this respect and the claims in this regard had
therefore to be rejected.

(269)   Another interested party
claimed that the injury suffered by the Union industry is due to the Union
industry’s focus only on specialized investments and its failure to make the
necessary investments in capacity additions and cost reductions. Likewise, this
claim could not be confirmed by the findings of the investigation which showed
that the Union industry increased its production capacity and efficiency during
the period considered (recitals (124) and (187) to the provisional Regulation. This
claim was therefore rejected.

(270)   Moreover, an interested
party claimed that the Union industry increased its production capacity in
spite of already low capacity utilisation rates, thus resulting in
self-inflicted injury. This claim was based on the comparison between the trend
of investments of the sampled Union producers and the trend of the capacity
utilisation of the whole Union industry, which is not an appropriate basis for comparison.
Furthermore, the investigation showed that the Union industry had not expanded
its production capacities on a scale which exceeded the development of Union consumption,
therefore this argument was rejected.

(271)   Moreover, the evidence
collected indicates that through investments in new machinery, the Union
industry could reduce its cost of production and become more cost competitive. Therefore,
this argument had to be rejected.

(272)   One interested party alleged
that the conclusions in recital (189) to the provisional Regulation
contradicted the findings made in recitals (124) and (186) to the provisional
Regulation without however giving any further explanations specifying the
nature or extend of the alleged contradictions. This claim had therefore to be
rejected.

(273)   Following the final
disclosure, some interested parties contested that the capacity additions of
the Union industry were reasonable and followed market developments and in
particular the development of the Union consumption. However, as far as modules
are concerned the production capacity increased by 106%, while the Union
consumption increased by 221% over the period considered, i.e. more than
double. Likewise, as far as cells are concerned, the production capacity
increased by 39%, while the Union consumption increased by 87% during the
period considered. This shows that the increase in capacity was substantially
below the increase in consumption and can therefore not be considered as
unreasonable given that there never was overcapacity in the Union. Moreover,
the analysis whether the capacity additions were reasonable should not be based
on a year to year analysis, but should take into consideration the trend during
the whole period considered. Thus, capacity additions will typically only
become fully operational after a certain period of time after the investment
made and the isolated analysis of one year may lead to a distorted picture.
This argument was therefore rejected.

(274)   In absence of any other
comments regarding the Union’s industry overcapacity, the findings in recitals (185)
to (190) to the provisional Regulation are confirmed.

3.6.        Impact of raw material prices

(275)   Some interested parties
reiterated that the Union industry or at least part of it could not benefit
from the decrease in prices of polysilicon, during the IP, because of long term
contracts for raw material. With reference to the findings in recital (193) to
the provisional Regulation stating that the Union industry was able to
renegotiate its long term contracts with its suppliers (including wafers
producers) and therefore could benefit from lower prices, these parties claimed
that the renegotiations or termination of long term contracts of polysilicon
and/or wafers resulted in penalties. To support this argument, these parties
provided press articles reporting that some Union producers were facing
litigation or that they terminated their contracts. Some parties provided
information allegedly confirming that the long term contracts could not be
re-negotiated.

(276)   Polysilicon
is the main raw material for the wafers producers. The investigation revealed
that polysilicon prices increased in 2008 when they reached their peak at
around 500$/kg, but decreased again in 2009 reaching about 50-55 $/kg at the
end of 2009 with only a slight upwards trend in 2010 and early 2011. Prices
dropped significantly during the IP resulting in the 30$/kg (JRC Scientific and
Policy Reports, PV Status Report 2012). It should be noted that the impact of
polysilicon prices on the Union industry could only be rather marginal as any
effect on the cost of production of cells and modules was diluted through the
value chain. Moreover, the above mentioned press articles referred to post-IP
developments, which did not affect the situation of the Union producers
concerned during the IP, and cannot therefore be taken into account. This
matter was further investigated after the imposition of provisional measures
and, as a result, it can be confirmed that the Union industry was indeed able
to renegotiate not only the prices of the long-term contracts but also any
contractual penalties relating to these long-term contracts.

(277)   One of the above interested
parties argued further that it is sufficient that only some Union producers
have been affected by the long term contracts and that the situation of the
overall Union industry is irrelevant. It claimed that higher costs do not necessarily
have to affect all operators in the same way. This argument ignores the finding
that overall, for the Union industry, the average polysilicon prices were in
many cases not found to be higher than the market prices or than the spot
prices and that therefore the issue whether higher costs affect all or only few
operators was not considered pertinent. This argument was therefore rejected.

(278)   Another interested party
requested that the Commission separate, distinguish and quantify the effects of
each factor having an impact on the situation of the Union industry; in
particular the effect of the significant drop in polysilicon prices should be
considered separately. In this regard, it was argued that it was the decrease
in the polysilicon prices rather than the price pressure from the Chinese
imports that caused the decrease in sales prices. As far as the Union industry
is concerned it should be noted that the average selling prices decreased much
further than the decrease of the average cost of production, on which the
decline of raw material prices could have an impact. This argument was
therefore rejected.

(279)   Following the final
disclosure, some interested parties reiterated that the impact of the decrease
of polysilicon prices on the Union industry’s cost was not limited or diluted
through the value chain as concluded in the investigation. However, as already
mentioned in recital (276) above, polysilicon is the main raw material for
wafers producers, thus any impact on the production cost of cells or modules
was found to be diluted in the value chain. The interested parties did not
provide any evidence which could have devaluated this finding. Moreover, the
investigation showed that the decrease of polysilicon prices over the period
considered was reflected in the average cost of production of cells and modules
of the sampled Union industry which decreased to a similar degree than the
polysilicon prices. One interested party questioned the impact of alleged
penalties that the Union industry had to pay due to the re-negotiation of the
supplier contracts. In this regard, it cannot be excluded that a limited number
of producers may have had to pay penalties for the cancellation of wafers
supply contracts during the period considered. However, the Commission did not
find any evidence that these penalties could have had an effect on the
situation of the Union industry as a whole or would be representative. Such
evidence was also not provided by the interested party in question. While it
can therefore not be completely excluded that penalties could have had a
certain negative impact on a limited number of Union producers, the overall
impact on the Union industry is at best marginal and hence could not break the
causal link between the dumped imports and the material injury suffered by the
whole Union industry. Therefore, these arguments had to be rejected.

(280)               Another
interested party claimed that the decrease of sales prices of the product under
investigation in the Union is partly due to the reduction in the price of
polysilicon. However, in this regard, it should be noted that the investigation
showed that the imports from the PRC were dumped and substantially undercutting
the prices of the Union industry. The price decrease therefore goes beyond the
reduction in production costs that can be explained by the decrease in the raw
material prices. If the price decrease was merely the effect of the decrease of
the raw material prices, the Union industry would not have been forced to
decrease their sales prices below their cost of production. Therefore, this
claim has to be rejected.

(281)               Another
interested party reiterated that the litigation of one Union producer after the
IP may has affected the situation of at least this Union producer already
during the IP. This party did not explain however how and to what extend such
event that occurred after the IP could indeed have had an effect on this
producer’s situation during the IP. Likewise, the investigation did not reveal
any evidence showing such effects. Therefore this claim had to be rejected.

(282)   Moreover, the same
interested party questioned the above mentioned findings, as allegedly no
evidence was shown. However, the findings of the investigation were based on
facts and positive evidence, non-confidential versions of which were available
to all interested parties.

(283)   In absence of any other
comments with regard to the impact of the raw material prices, the findings in
recitals (191) to (194) to the provisional Regulation are confirmed.

3.7.        Self-inflicted injury:
impact of automation, size, economies of scale, consolidation, innovation, cost
efficiency, imports of the Union industry

(284)   Following
the provisional disclosure, certain interested parties reiterated the claim
that the injury suffered by the Union industry was due to the Union industry’s
lack of sufficient economies of scale. It was reiterated that small-scale
producers had a disadvantage compared to larger vertically integrated producers
and therefore any injury suffered by small scale producers cannot be attributed
to the dumped imports. Another interested party argued that the automation of
the production process is costly and that therefore economies of scale are even
more important to reduce the cost of production.

(285)   The
investigation showed that the Union industry, even the larger and vertically
integrated ones, due to the dumped imports, could not fully benefit from high
capacity utilization rates to achieve economies of scale. In any event, the
investigation did not reveal any correlation between size, vertical integration
and better profitability rates, as the high price pressure from dumped imports has
altered this correlation. The investigation has showed that the benefit of
economies of scale no longer existed in a market where the utilization rates
were low, which was also true for the Chinese producers. Therefore, these
arguments were rejected.

(286)   Furthermore, one interested
party claimed that investors and banks would not finance projects if the module
manufacturer is too small, as larger producers provide better guarantees and
are more ‘bankable’. In other terms, investors and banks are reluctant to
finance PV related projects using modules produced in the Union. However, the
investigation showed that any possible preference of investors and banks to
finance Chinese producers which have larger production capacities is the result
of the distortion that dumped imports have created on the Union market. As
mentioned above in recital (285), the size of the production lines does not
play a role if utilisation rates remain low. Therefore, this argument was
dismissed.

(287)   One
interested party reiterated that the Union industry had an unfavourable cost
structure compared to its Chinese competitors, as the latter enjoyed lower labour,
electricity and depreciation cost, and in addition had the newest equipment. However,
the party concerned was unable to provide new information or supporting
evidence that could reverse the findings of this investigation in this regard.
In particular, the claim that the Chinese producers were using the newest
equipment was addressed in recital (203) to the provisional Regulation, stating
that the exporting producers in the PRC did not enjoy any comparative
advantage, in particular because machinery and equipment was imported from the
European Union. The above claims were therefore rejected.

(288)   Another party claimed that
the Chinese enjoyed a comparative advantage with regard to polysilicon prices
and to economies of scales which resulted in lower cost of the machinery. This
party did not provide any new information or supporting evidence in this regard
that could reverse the findings as set out in recitals (195) and (196) as well
as (203) to the provisional Regulation. The claim of this party had therefore
to be rejected.

(289)   It is recalled that as set
out in recital (203) to the provisional Regulation and mentioned also in
recital (287) above the exporting producers in the PRC do not enjoy any
comparative advantage with regard to raw materials and the machinery used as
both were mostly imported from the Union. One interested party contested the
above, without however providing any evidence. As far as labour and overhead
costs, including depreciation costs are concerned, they represented on average less
than 10 % of the total cost of a module in the IP and are not considered to
have played any significant role. As far as electricity costs are concerned,
they represented on average less than 1 % of the total cost of a module in the
IP and are not considered to have played any significant role. Moreover, the
claim that the Chinese were using the newest equipment was not substantiated.

(290)   Moreover, one interested
party reiterated that some Union producers sourced cells and/or modules from
the country concerned, and re-sold those products on the Union market as their
own. It requested that injury resulting from these transactions is not
attributed to the dumped imports. However, the investigation revealed that
imports from the Union industry of the product concerned were complementary in
nature as well as limited in terms of volume when compared to the total Union
production and therefore their effect, if any, would only be marginal and could
not be considered as breaking the causal link between the dumped imports and
the injury suffered by the Union industry.

(291)   One unrelated importer
argued that the fact that the number of employees increased over the period
considered was not sufficiently addressed in the provisional Regulation. In
respect of this claim, it is noted that employment increased between 2009 and
2011 for modules and then decreased during the IP. For cells, the employment
increased until 2010 and then decreased in 2011 and further decreased in the
IP. It is noted that for modules, employment followed the trend of the Union
production. For cells, as the Chinese imports increased their market share
during the entire period the Union industry could not benefit from the growing
consumption as expected. Therefore, the employment decrease in 2011 and in the
IP corresponds to companies that either had become insolvent or stopped their
cell production.

(292)   Following the final
disclosure one interested party reiterated that the injury suffered by the
Union industry was due to the small scale and the lack of economies of scale.
As already explained in the recital (285) above and in recitals (195) and (196)
to the provisional Regulation, even in the global market, the size and
therefore the benefit of economies of scale cannot longer exist where the
utilization rates were generally low, and where enormous overcapacities existed
world-wide. Therefore this claim had to be rejected.

(293)   Moreover, the same party
reiterated that the injury suffered by the Union industry was due to the
inability of the Union industry to realize any cost advantage. This party
claimed that this was in particular due the fact that most of the Union
producers were vertically integrated. However, this party did not provide any
further information to what extend the fact that producers are vertically
integrated could have had a negative impact on their cost structure. Therefore
this claim had to be rejected.

(294)   In absence of any other
comments in this regard recitals (195) to (206) to the provisional Regulation
are confirmed.

3.8.        Competition from thin film
PV products and other PV technologies

(295)   Following the provisional
disclosure, one interested party reiterated the claim that the injury suffered
by the Union industry was caused by the competition from thin film PV products
and other PV technologies, as these technologies were competing with the
product under investigation especially for ground-mounted and
commercial/industrial rooftop systems, which constitute a substantial part of
the total Union PV market.

(296)   The
investigation showed that although thin film PV products are less expensive
than the product under investigation, they only capture a limited market share
of the total Union solar market as they have much lower conversion efficiencies
and a lower wattage output than crystalline silicon modules. According to the
information available, the market share of thin film products was not
significant comparing to the total Union solar market during the IP. Therefore,
the findings in recital (208) to the provisional Regulation, that although
there may be some competition between the thin film products and the product under
consideration, this competition is considered to be marginal, are confirmed. On
these grounds, the arguments brought forward in this regard had to be rejected.

(297)   Following the final
disclosure, one interested party reiterated that the competition from thin film
products likely caused the material injury suffered by the Union industry. In
this regard, the party submitted that in Germany the market share of thin film
products in the total solar market was substantial during most of the IP and
only declined towards the beginning of 2012.

(298)   The investigation showed
indeed that the average prices of thin film products were at lower levels than
the average price levels of the product under investigation.

(299)   However, as set out in
recital (296) above thin film products have much lower conversion efficiencies
and a lower wattage output than crystalline silicon modules and therefore
competition between these product, if any, could not contribute to the injury
of the Union industry, as crystalline silicon modules are the dominant
technology in the Union solar market. The JRC PV Status Report 2012 states that
as a consequence of the drop in polysilicon prices, thin film has in the last
years lost market share to crystalline silicon modules.

(300)   In absence of any other
comments in this regard, the findings of recitals (207) to (210) to the
provisional Regulation are confirmed.

3.9.        Financial crisis and its
effects on access to finance

(301)   Following the provisional
disclosure it was claimed that the injurious effects of the financial crisis
and of its effects on access to finance should be separated and distinguished
and not attributed to the dumped imports.

(302)   In this regard reference is
made to recital (212) to the provisional Regulation where the effects of the financial
crisis and the economic recession on the situation of the Union industry were
specifically addressed. This recital sets out in detail the reasoning behind
the finding that the financial crisis, although having had an impact on the
situation of the Union industry, did not break the causal link between the
dumped imports and the material injury suffered by the Union industry. This
specific reasoning has not been contested by the interested parties nor did
they provide any new information or evidence which could have devaluated the
findings set out in this recital. The claims made in this regard were therefore
rejected.

(303)   Moreover it was claimed that
the injury suffered by the Union industry was due to the Union’s industry
failure to seek appropriate financing and that the Commission should
investigate whether the Union industry requested financing while they were
profitable. The investigation in fact showed that in 2010, when Union industry
was still profitable, the level of investment increased for modules and for
cells respectively by 315% and 10% as compared to 2009. As the PV industry is
capital intensive, it is expected that the Union industry is continuously
seeking appropriate financing in order to improve its cost efficiency and
compete with the unfair dumped imports. Therefore, it is concluded that the
lack of access to finance was a result of the distorted situation caused by
dumped imports and not its cause. The above claim was therefore rejected.

(304)   Following the final
disclosure, one interested party reiterated that the injurious effects of the
financial crisis should be separated and distinguished and not be attributed to
the dumped imports. This party referred to publicly available information
indicating that at least one Union producer perceived the financial crisis as
the main cause for its injurious situation. The current investigation based its
findings on specific company data which go significantly beyond publicly
available statements of specific companies. Therefore, the publicly available
statement to which reference was made cannot devaluate the findings made in recital
(212) to the provisional Regulation, where it was concluded that while the
financial crisis had a certain impact on the situation of the Union industry,
it could not break the causal link between the dumped imports and the material
injury suffered by the Union industry. Therefore, this claim had to be rejected.

(305)   Another interested party
claimed that the different access to financing between the Union industry as
compared to the Chinese exporting producers should be taken into consideration.
This party claimed that this was one of the main factors which caused the
material injury to the Union industry and not the dumped imports. However, the
preferential access to financing of a number of Chinese exporting producers has
been found to distort the market and may well be one of the main reasons
allowing Chinese exporting producers to export the product concerned at dumped
prices. This factor can therefore not break the causal link between the dumped
imports and the material injury suffered by the Union industry. This claim was
therefore rejected.

(306)   In absence of any other
comments regarding the effects of the financial crisis, the findings of recitals
(211) and (212) to the provisional Regulation are confirmed.

3.10.      Export performance of the
Union industry

(307)   In absence of any comments brought
forward to reconsider the findings set out in recitals (213) and (215) to the
provisional Regulation, they are confirmed.

3.11.      The discovery of shale gas
deposits in the Union

(308)   In absence of any comments brought
forward to reconsider the findings set out in recitals (215) to (217) to the
provisional Regulation, they are confirmed.

3.12.      The European Union’s
Emissions Trading Scheme (ETS)

(309)   In absence of any comments brought
forward to reconsider the findings set out in recitals (218) and (219) to the
provisional Regulation, they are confirmed.

3.13.      Management decisions

(310)   Some interested parties
reiterated the claim raised in the recital (220) to the provisional Regulation
that the material injury suffered by at least one of the Union producers was
caused by wrong management decisions. These parties provided further
information in the form of a press article. However, the information provided
could not be verified and could not reverse the findings of this investigation that
the management decisions of the company concerned were normal and prudent or
had no impact on the entire Union industry. Therefore, the above claims were
rejected.

(311)   In the absence of any other arguments
in this respect, the findings as set out in recitals (220) and (221) to the
provisional Regulation are confirmed.

3.14.      Other government policies

(312)   In absence of any comments
to reconsider the findings set out in recital (222) to the provisional
Regulation, they are confirmed.

3.15.      Other arguments

(313)   One interested party claimed
that the injury suffered by the Union industry was due to the forerunner
disadvantage and the lack of political support from the European Commission in
previous years. This party also claimed that apart from the national support
schemes, also population, GDP, electricity consumption, financing opportunities
and connectability to the grid are important factors in each market. However,
the above party was not able to substantiate its claims which were therefore
rejected.

(314)   Following the final
disclosure, the same interested party reiterated that the injury suffered by
the Union industry was due to the forerunner disadvantage. However, the claim
was neither analysed nor substantiated; therefore it had to be rejected.

4.           Cumulative assessment of
those other factors that have been found to contribute to injury

(315)   The investigation has shown
that the following other factors may have contributed to injury: Imports of the
product concerned from Taiwan; Reduction in the level of FIT; Long-term
polysilicon contracts of limited number of Union producers; the financial and
economic crisis.

(316)   As has been shown above in
sections 3.1 respectively 3.6, the possible contribution of imports from Taiwan
and of long-term polysilicon contracts of a limited number of Union producers
are, at best, marginal, because any impact was further diluted through the
value chain.

(317)   With regards to the economic
and financial crisis, the investigation has shown that the main reason for
difficulties of the Union industry in accessing the capital needed for
investments were the dumped imports, which prevented the Union industry from
selling its products at profitable prices when the Union market showed strong
growth rates (2009-2011).

(318)   With regards to FIT, third
parties have not been able to demonstrate that FIT levels during the IP would
have been so low that they would have prevented Union producers from selling
the product concerned at non-injurious prices. The Institutions take the view
that reductions in FIT levels may explain reduced demand, as investments in
certain locations were no longer viable. They cannot, however, break the causal
link, even taken together with the other factors that have been found to
contribute to injury, because they were still at a level at which, absent the
dumped imports, the Union producers could have sold their products at
non-injurious prices.

(319)   Therefore, even if the
cumulative effect of the four other factors possibly contributing to injury is
assessed, the causal link between dumping and injury is not broken.

5.           Conclusion on causation

(320)   All the effects of the
injury factors other than the dumped imports have been individually and
collectively analysed. Therefore, it is concluded that the collective
assessment of all the factors that may have had an impact on the injurious
situation of the Union industry (i.e. imports of third countries, FITs, impact
of raw material prices, financial crisis) collectively fail to explain the
injury suffered by the Union industry in particular in terms of low prices and
financial losses due to the penetration of low priced imports in significant
quantities of the product concerned from the PRC. Based on the above, the
provisional findings as set out in recitals (223) to (224) to the provisional
Regulation that the dumped imports from the PRC caused material injury to the
Union industry within the meaning of Article 3 (6) of the basic Regulation is
confirmed.

F.         UNION INTEREST

1.           Preliminary remarks

(321)   Following
the provisional disclosure, one interested party claimed that the assessment of
the Union interest was not based on a representative number of operators.

(322)   The
Commission has contacted the different operators in the following manner.

(323)   Unrelated importers: as
mentioned in recital (12) to the provisional Regulation, the Commission
contacted all the 250 unrelated importers made known by the complainant and
selected a provisional sample in accordance with Article 17 of the basic
Regulation to cover the largest representative volume of imports which can
reasonably be investigated within the time available. However, as set out in
recital (12) and (232) to the provisional Regulation, only one of the companies
provisionally selected was indeed, after verification, confirmed to be an
unrelated importer. After publication of the provisional Regulation, fifteen further
unrelated importers, which had initially submitted a sampling form at the
initiation stage but were not sampled, were invited to cooperate further with
the investigation. Six of them agreed and received a questionnaire, and five
submitted a reply out of which three were considered to be sufficiently
complete. The definitive sample of unrelated importers therefore comprises four
unrelated importers, representing a range of 2 % to 5 % of the imports of the
product concerned. With regards to that low percentage, it has to be kept in
mind that the majority of imports of the product concerned into the Union does
not take place via unrelated importers, as explained in recital (12) to the
provisional Regulation.

(324)   Operators
other than unrelated importers (upstream and downstream operators): as
mentioned in recital (226) to the provisional Regulation, the Commission also sent
specific questionnaires to about 150 operators including those unrelated
importers that had come forward after the initiation of the investigation,
which had therefore the opportunity to provide the relevant data to the
Commission. Moreover, not only the replies to the questionnaires but also
verifiable and duly substantiated comments and submissions provided by
interested parties within the deadlines were taken into consideration in the
investigation, irrespective of whether or not these parties had replied to the
questionnaire. In particular, AFASE has transmitted to the Commission comments
on behalf of its members - PV operators that were also analysed.

(325)   In the light of the above, sufficient
elements were gathered allowing a meaningful assessment of the Union interest.
On these grounds, the argument was rejected.

(326)   One interested party
requested the Commission to clarify how the Commission handled the importers
questionnaires which it considered to have been submitted by downstream
operators.

(327)   In reply to this request, it
is clarified that the 36 replies indicated in recital (241) to the provisional
Regulation concerned replies to the Annex B of the Notice of initiation, the
purpose of which was to sample unrelated importers if appropriate.

(328)   Concerning the replies to
the questionnaires of the two operators indicated in recital (12) to the
provisional Regulation one was taken into account in the relevant analysis of
the downstream operators. The second operator submitted additional information
which revealed that, contrary to what was stated in recital (12) to the
provisional Regulation, it was indeed an importer of modules but not an
importer of cells. Nevertheless, the information provided in its reply to the
questionnaire was not sufficient to include it in the analysis of unrelated
importers due to the fact that the replies provided were incomplete.

(329)   After
the imposition of provisional measures, further verification visits were
carried out at the premises of to two project developers (see above recital (8).
In addition, the six replies to the specific questionnaires (see recital (324) by
service providers also active in the PV sector (logistics, transport, public
relations, etc.), which were deemed initially to be insufficiently complete
(see recital (241) to the provisional Regulation) were analysed and taken into
account for the purpose of this investigation (see recitals (369) to (371)
below).

(330)   To
sum up, for the analysis of Union interest, the following information has been
relied on:

–
the questionnaire replies received from eight
sampled Union producers and four sampled unrelated importers as well as the
replies to the specific questionnaire received from eight upstream and thirteen
downstream operators (seven project developers/installers; six service
providers also active in the PV sector) out of 150 operators that had come
forward after the initiation and received the specific questionnaires;

–
the data verified during the on-site
verifications at the premises of eight Union producers, one unrelated importer,
two upstream operators, four downstream operators (project
developers/installers) and one association (see recital (17) to the provisional
Regulation and recital (8) above)

–
the data on Union interest submitted by other
interested parties, including associations, as well as publicly available data
on the evolution of the PV market in Europe, in particular: EPIA’s Global
Market Outlook for Photovoltaics 2013-2017

2.           Interest of the Union
industry

(331)   Some interested parties
contested that the Union industry would be able to benefit from any measures
arguing that (i) the measures will lower the demand for PV products in the
Union and therefore the Union industry will not be able to increase their
sales, (ii) the Union industry has small production facilities and is therefore
not able to meet the demand of certain types of installations such as
commercial rooftop and large ground-mounted installations, (iii) the Union
producers are not ‘bankable’’ (iv) the imposition of duties on cells will de
facto increase the cost of production of the Union producers of modules and
make them less attractive for consumers, (v) in case of significant drop of
Chinese imports, the producers from other third countries will most likely take
advantage of the fewer imports from the PRC.

(332)   Concerning the claim that
measures will lower the demand for PV products in the Union and therefore the
Union industry will not be able to increase their sales, it is noted that the
parties were unable to provide any verifiable evidence of the existence of a
direct link between the imposition of measures and the decrease in demand for
PV products which proved to be influenced over the years by several factors.

(333)   In reply to the claim that
the Union industry has small production facilities and is therefore not able to
meet the demand of certain types of installations such as commercial rooftop
and large ground-mounted installations, it should be noted that the
investigation has showed that the Union industry has the capacity to supply
both the commercial and industrial installations (between 40 KW and 1MW) and
the utility market segment installations (1 MW and 10 MW). Moreover, the
investigation did not reveal any evidence that products supplied by different
manufacturers could not be used in the same project. This claim was therefore
rejected.

(334)   The argument that the Union
industry would not benefit from the measures because Union producers are not ‘bankable’
and that investments funds would not accept to finance projects using EU-made
modules was not substantiated. In any event, it is expected that the imposition
of measures will restore fair market conditions which should reassure investors,
including from the banking sector, as to the ability of Union producers to
develop viable projects. On these grounds, this argument was rejected.

(335)   With
reference to the claim that the imposition of duties on cells will de facto
increase the cost of production of the Union producers of modules and make them
less attractive for consumers, while it is not excluded that a certain increase
in prices could occur further to the imposition of duties, it should also be
considered that public available sources indicate that the price trend of
modules and cells is downward. Thus, even if the cost of cells might increase
as a result of measures, the overall decreasing trend of prices should result in
decreasing costs of modules. The producers in question may also decide to
source their cells in the Union, and no longer from the PRC. Finally, it is expected
that the imposition of measures will increase the capacity utilization of cells
producers in the Union thus increasing their economy of scale and as a
consequence reduce costs. This claim was therefore rejected.

(336)   The
argument that in case of a significant drop of Chinese imports further to the
imposition of measures, the other third countries will most likely take
advantage of this rather than the Union industry was not confirmed by the
investigation. The investigation did not reveal any clear indications that the
other third countries would direct their exports massively to the Union market,
in particular taking into account the likely expansion of other third country markets,
notably in Asia, as forecasted by publicly available sources. Finally, there is
no indication that even if imports from other third countries would increase as
a result of a drop of Chinese imports, the Union industry will not be able to
compete with imports from these countries.

(337)   In
reply to the final disclosure some parties argued that it is unrealistic to
expect the emergence of a sustainable Union industry manufacturing modules and cells
because there is no rational investor that would invest in the Union producers
that allegedly suffer from an unfavourable cost structure and can therefore not
produce at competitive prices. The investigation did not confirm that the Union
industry is suffering from an unfavourable costs structure, as explained in
recitals (202) and (203) to the provisional Regulation. Therefore, absent
dumped imports and utilising the production capacities to a larger extent
should bring economies of scale and allow for the emergence of a sustainable
Union industry. In view of the above the argument was rejected.

(338)   One party argued that the
demand in the Union is driven by the development of FITs and the expected
return on investment by the investors is linked to this development. In
particular, it claimed that, if prices increase in the Union, as a consequence
of the duties, and FITs do not follow this increase accordingly, demand will
decrease and the Union industry will not benefit from the duties imposed.

(339)   In reply to the above claim,
it is noted that despite the correlation between the level of FITs and the
demand for PV installations, the evidence collected during the investigation
indicates that future demand will be less and less dependent on FITs and other
support schemes as PV grid parity is likely to have been reached by certain
types of installations in several places in the Union (see recital (260)above).
Furthermore, the expected return on investment should be based on fair market
prices. Finally as mentioned in recital (335) above, while it is not excluded
that a certain increase in prices may occur further to the imposition of measures,
it should be noted that public available sources indicate that the overall
price trend is downward. The argument was therefore rejected.

(340)   Interested parties have
pointed out that because demand for solar panels is driven by support schemes,
in particular FIT, and by the level of electricity prices for the final
consumer (which determine grid parity), price elasticity of demand can be very
high. Whereas it is correct that an important increase in prices may lead to an
important reduction of demand because of the particular nature of the market
pointed out by those interested parties, the argument has to be rejected
because it is very unlikely that price increases caused by the measures will be
important, for the following reasons. First of all, all available sources
confirm that the important decrease in prices for the product concerned
throughout the IP and since the IP until today will continue. Secondly, the
economic effect of the undertaking that has been accepted by the Commission is
that Chinese exporting producers will supply the product concerned at a minimum
import price of less than 60 c/W, which is far below the price that has been
observed during the IP, at a volume that corresponds roughly to their current
market share. At this price level, demand is very unlikely to drop in a
significant manner, as that price level ensures sufficient demand both under
the current level of support provided by support schemes and under the current
levels of grid parity. Furthermore, the price of electricity for final
consumers is expected to increase, whereas the price of the product concerned
is expected to decrease. Through an indexation formula, the undertaking ensures
that further price decreases of the product concerned are taken into account
for the minimum import price. Therefore, those arguments have to be rejected.

(341)   Several interested parties
reiterated the allegation that the interest of the Union industry is not significant
since the value added created by the upstream and downstream industries is far
more significant than the value added created by the Union industry in the PV
value chain. The argument that the various segments in the PV sector have a
different added value is not disputed. As mentioned in recital (228) to the
provisional Regulation, the investigation established that the Union industry
has suffered material injury caused by unfair trade practices. Indeed some
Union producers have already been forced to close down and in the absence of
measures, a further deterioration appears certain. As all segments in the PV
sector are closely interrelated, the disappearance of the Union production
would be detrimental to the whole PV sector making it fully dependent on
outsourced supply. Therefore, also for reasons of security of supply, the argument
was therefore rejected.

(342)   In
reply to the final disclosure, one interested party reiterated the claim that the
higher value-added created by the upstream and downstream industry, as compared
to the Union industry of the product concerned, is relevant to whether
anti-dumping duties should be imposed. In this respect, it is confirmed that in
assessing the Union interest the Institutions did balance the positive and
negative consequences the duties may have on the various economic operators. Whereas
the impact on the upstream and downstream industry is limited, the measures
will afford the Union industry the possibility to recover from injurious
dumping.

(343)   One party contested the
number of jobs that would be secured by the imposition of measures. It claimed
that the Union industry employs about 6 000 people, and not 25 000 as reported in
recital (229) to the provisional Regulation.

(344)   No
evidence was however provided to support the above claim and therefore it was
dismissed. It is clarified that in view of the exclusion of wafers from the
product scope, the employment in the Union industry amounted to around 21 000
employees during the IP. Interested parties did not provide any proof that the
number of employees in the Union industry has changed significantly post-IP.

(345)   In conclusion, the
investigation proved that the Union industry suffered material injury from the
dumped imports from the PRC, being unable to recoup the investment through
profitable sales. It is expected that the imposition of measures will restore
fair trade conditions on the Union market, allowing the Union industry to
compete on equal footing. The likely decrease in imports from the PRC should
enable the Union industry to increase their sales in the Union and thus better
utilise the available production capacities in the short term. This in turn may
bring economies of scale. While it is possible that the prices of the like
product will raise in a short period of time due to the measures, the overall descending
price trend is likely to be maintained also thanks, on the one hand, to the
further decrease of cost of production of the product under investigation, and,
on the other hand, the competitive pressure from the third countries'
producers, which would also compete in the Union market.

(346)   In the absence of any
further comments, recitals (227) and (231) to the provisional Regulation, with
the exception of the employment figure referred to in recital (344) above,are
confirmed.

3.           Interest of unrelated
importers

(347)   Following the provisional
disclosure, the unrelated importer which provided a questionnaire reply prior
to the imposition of provisional measures and had been considered to constitute
the provisional sample claimed that the conclusions with regard to the impact
of the measures on unrelated importers was only based on its own questionnaire
reply which could therefore not be considered as representative.

(348)   The provisional Regulation
based its findings with regard to unrelated importers on one company given that
as explained in recital (232) to the provisional Regulation the major activity
of only one out of the three provisionally sampled importers consisted in
trading of the product concerned. As stated above in recital (21) subsequent to
the imposition of provisional measures, the sample was enlarged, more unrelated
importers were contacted and out of the five additional questionnaire replies
received only three were sufficiently complete and allowed for meaningful
assessment. At definitive stage, the sample for unrelated imports was therefore
expanded to include four importers. Overall, during the
IP, the activity of the four sampled cooperating unrelated
importers related to the product concerned varied
between 60% and 100% of their total business. In addition, the four cooperating
unrelated importers sourced from the PRC between 16% to 100% of their total
imports of modules, only one sourcing exclusively from the country concerned.
The profitability of the four sampled cooperating unrelated
importers related to the product concerned was on
average 2.3% in the IP.

(349)   One interested party argued
that the impact of the duties on the unrelated importers was underestimated as
there are no immediate alternative sources of supply that could replace the Chinese
imports of the product concerned if the duties were imposed and that changing a
source of supply is difficult in view of the fact that the major production is
based in the PRC and this would entail additional significant costs.

(350)   In this respect, it is
recalled that the imposition of measures should not result in the disappearance
of the imports of the product concerned from the PRC. The investigation indicated
that the possible decrease of imports from the PRC will impact in particular
those importers that source the product concerned exclusively from the PRC,
which is the case only for one out of the four cooperating unrelated importers.
Concerning the impact of measures on the unrelated importers' financial
situation, it was not excluded that it can be negative, but it has been
concluded that this will largely depend on their capacity to switch sources of
supply or to pass at least part of the possible price increase on to their
customers. For operators importing the product also from other sources than the
PRC or importing also other products than the product concerned the negative
impact will be further limited. The Commission therefore considers that
although there is likely to be a negative impact on the importers of the
product concerned, this impact will, on average, remain limited.

(351)   One unrelated importer
argued that it needs significant working time and financial investment before
accepting the products of a new supplier. In this respect a claim was made in
reply to the final disclosure that relevant evidence was provided to the
verification team at the time of the on-the-spot visit on the long testing
requirement that an importer must do before taking the decision to supply from
a particular exporter.

(352)   It is acknowledged that the
setting of a new relationship between an importer and a supplier may entail
additional costs and time investment (e.g. in testing the product). At the same
time, changing suppliers seems to be a normal risk calculated in an importers'
professional activity and is related to the fact that the PV market is maturing
and thus undergoes constant changes (e.g. bankruptcies, consolidations)
requiring switching to new suppliers. Moreover, it can be assumed that new
types of modules that reach the market on a constant basis (containing e.g. new
efficiency characteristics) also require testing. In this respect, testing of a
new product (even from the same supplier) appears to be a standard rather than
an unusual activity. The argument is therefore rejected.

(353)   In reply to the final
disclosure two parties reiterated the claim that the interest of the unrelated
importers was not properly considered. One party claimed that the lack of the
non-confidential version of the replies to the questionnaires by the additional
cooperating importers did not allow a proper assessment by the parties. It
questioned the Commission's assessment regarding the possibility that other third
country imports in the Union would increase thus allowing the importers to
switch their supplies, on the basis of the allegation that other third markets
are booming. To this end, the party claimed that such assumption is in
contradiction with the conclusions in recital (336), which argued that imports
from other third countries would not be massive. Another party questioned
whether the Commission respected the principle of non-discrimination as the
Union producers were given more prominence in the Commission's assessment than
the other operators.

(354)   First, it is confirmed that
the non-confidential version of the replies to the questionnaires received
after publication of the provisional Regulation by the additional cooperating
importers was included in the file for consultation by interested parties.
Secondly, there is no contradiction between the assumption that the imports
from other third countries can increase in response to lower imports from the
PRC and that such increase should not be massive in view of the growing demand
for PV installations world-wide. At the same time, as the Union industry is
expected to retake a certain part of the market share that was previously held
by products from the PRC, a certain loss in business for unrelated importers
cannot be excluded. However, it is observed that the overall size of the PV
market is expected to continue to grow in the long term, as grid parity is
reached in more and more locations. Finally, it is clarified that, as in all
trade defence investigations, while the situation of the Union industry was
assessed in order to establish if it suffered material injury due to the dumped
imports, in the context of the Union interest analysis the interest of the
Union industry was assessed on an equal basis to the other economic operators,
including the unrelated importers. It is also clarified that the investigation
whether or not the Union industry suffered material injury is governed in
particular by Article 3(5) to the basic Regulation which set the minimum
standards of such investigation. The Union interest is only analysed once a
positive determination of injurious dumping was made in accordance with the
standards set out in Article 21 to the basic Regulation. As a result it was
considered that the likely negative impact of the measures on certain
importers, in particular those sourcing exclusively from the PRC, did not
outweigh the benefits of the measures for the Union industry and the mid- and
long term benefits to the Union PV market resulting from fair competition

(355)   In the absence of any
further comments, on the basis of the information covering the four sampled
importers, recitals (233) and (234) to the provisional Regulation were confirmed.

4.           Interest of upstream
operators

(356)   Following the provisional
disclosure, several parties reiterated the claim that a majority of inputs in
the PV value chain comes from the Union and that such advantageous situation
may cease should the duties be imposed as production in the PRC of the product concerned
will decrease as a consequence of the duty. In reply to the final disclosure
one party pointed out that the measures in this case may trigger other
measures, which the PRC may impose on the Union products.

(357)   In
this respect, as mentioned in recital (239) to the provisional Regulation,
Chinese imports are expected to continue to supply the Union market even with
duties in place. In addition, various publicly available sources in the PV
sector, such as EPIA’s Global Market Outlook for Photovoltaics 2013-2017, forecast
that the possible contraction in demand in the Union should be only in the
short-term (in 2013 and 2014) since consumption in the Union will increase further
in the following years. Furthermore, as concluded in recital (239) to the
provisional Regulation, addressing unfair trade practises is likely to allow
building a sustainable growth in the PV market in the Union in the mid and
long-term, from which all operators in the Union should benefit. Finally, as
regards the argument on the possible retaliation of the PRC in reply to the
measures in this case, it is recalled that the PRC as any other WTO member, may
have a recourse to trade defence investigations only in justified circumstances
and any such investigation has to comply with strict WTO rules. The Commission monitors
any such investigation to ensure that the WTO rules are respected. The argument
was therefore rejected.

(358)   Some parties contested the
conclusion in recital (239) to the provisional Regulation that the decreased
exports of the Union PV upstream operators to the PRC might be compensated by
exports to other markets arguing that the duties will decrease the world-wide
demand for the product.

(359)   In
this respect, it is firstly noted that Chinese imports are not expected to
cease completely as a result of the duties. In addition, the information
collected in the course of the investigation did not establish any direct correlation
between the development of the imports from the PRC in the Union market and the
exports from the PRC to other markets. Moreover, publicly available sources, such
as EPIA’s Global Market Outlook for Photovoltaics 2013-2017, forecast that the
PV market world-wide will grow in the next years. As far as the Chinese market
is concerned, there are indications that the domestic consumption in the PRC
will increase substantially (e.g. as indicated by EPIA). In view of the above,
the exports of the Union upstream operators to the PRC are not expected to drop
significantly as a consequence of the imposition of measures.

(360)   It should also be noted that
the contraction of demand in the Union in 2013 and 2014 mentioned in recital (357)
above may have a negative impact on the upstream operators. This however cannot
be linked, at least not for its major part, to the duties as it was foreseen
well before the imposition of provisional measures. Moreover, concerning the Union
producers of machinery for the PV industry, as also mentioned in in recital
(239) to the provisional Regulation, due to the existing substantial spare
capacity in the PRC, it is unlikely that their exports to the PRC can
significantly increase even under the scenario that the Chinese producers
increase their production volume. Finally, the information gathered during the
investigation indicated that the machinery producers may also be impacted by
the Chinese 12th five-year plan for Solar Photovoltaic Industry
which foresees that by 2015 80% of the manufacturing equipment for cells should
come from the PRC. As long as this change is achieved in compliance with WTO
rules, this may also further limit the possibility of manufacturers of
machinery in the Union to compete in the Chinese market. The above argument was
therefore rejected.

(361)   In reply to the final
disclosure the GOC argued that the 12th five-year plan for the Solar
Photovoltaic Industry offers only some general guiding principles that are not
binding as there are no enforcement powers foreseen, and that therefore it
should not be considered as an indication that the possibility of manufacturers
of machinery in the Union to compete in the Chinese market will be limited. In
this respect it is noted that the GOC included the PV industry amongst strategic industries in the 12th
five-year plan and also issued a specific plan for the solar photovoltaic
industry. In this plan the GOC expressed its support for “superior
enterprises” and “key enterprises”, committed itself to “promote
the implementation of various photovoltaic support policies”, and “formulate
overall preparation of supporting policies on industry, finance, taxation ...”.
Furthermore, as the plan contains
essential directives to be achieved by the Chinese industry during the period
of five years it has a deep
impact on the business landscape, both within the PRC and in countries that do
business with the PRC. Considering the above,
there are clear indications that the freedom of choice of the Chinese
manufacturers of cells and the competitive pressure of the Union producers of
the manufacturing equipment exporting to the Chinese market is restricted by
the plan. Therefore this argument was rejected.

(362)   One cooperating raw material
producer contested the prospect of other markets compensation for the decreased
production on the Chinese market, in view of the substantial installed
production capacity in the PRC, which could not be easily built elsewhere.

(363)   In view of the conclusions
in recital (359) above this argument is dismissed since there are no
indications of the alleged decreased production on the Chinese market.

(364)   One interested party
contested the number of employees in the upstream sector quoted in recital
(236) to the provisional Regulation.

(365)   It is clarified that the
number of 4 200 employees reported in the provisional Regulation only referred
to the cooperating upstream operators, such as equipment manufacturers and
polysilicon supplier, based on their questionnaire replies, and not to the
whole sector.

(366)   Following the exclusion of
wafers from the product scope, the producers in the Union of this product
should nevertheless benefit from the imposition of duties, since the Union
industry is expected to increase its production of cells and modules.

(367)   In the absence of any
further comments, recitals (235) and (240) to the provisional Regulation are
confirmed.

5.           Interest of downstream
operators

(368)   As
mentioned in recital (329) above, after the imposition of provisional measures
further verification visits were carried out to two project developers.

(369)   In
addition to seven questionnaire replies of the downstream operators whose
activity is directly related to the like product (namely the project developers
and installers), the analysis of which constituted the basis for the assessment
of the downstream operators in the provisional Regulation, six additional replies
to questionnaires submitted at provisional stage and considered not to be
sufficiently complete (see recital (241) to the provisional Regulation) were
further analysed as they provided indications on the relative importance of
their PV related activity as compared to their total activity.

(370)   The six
additional operators concerned were service providers in the PV sector
(logistics, transport, public relations, etc.) thus operators whose activity is
not directly related to the product under investigation. Despite certain
deficiencies in the replies, the data in the questionnaires showed that the PV
related activity of these operators was marginal as compared to their total
activity. Indeed, during the IP the PV related activity represented on average
only around 5 % of their total turnover and 8 % of their total employment. Profitability
was on average around 7 %. However, it is noted that data concerning
profitability were not complete, as not all operators reported on this item.

(371)   On
the basis of the further analysis, it was concluded that in the light of the
data provided, any possible impact of the measures on the economic situation of
the service providers in the PV sector is unlikely to be significant.

(372)   Following the provisional and
final disclosure, several parties contested the representativity of the data
concerning the downstream operators on turnover, profitability and employment
derived by the Commission from the replies to the questionnaires by seven
downstream operators. AFASE submitted a ‘survey’ conducted amongst its members
(installers) to illustrate that for the majority of the installers the PV
business constitutes a primary source of income. AFASE further alleged that the
downstream operators, in particular installers, in contrast to the findings set
out in recital (242) to the provisional Regulation would only realise one-digit
profit margins which do not allow for absorption of any duties.

(373)   As regards the
representativity of the data used in the provisional Regulation the Commission
has used all the data provided by those downstream operators that have filled
in the specific questionnaire, as well as the submissions provided by AFASE, as
explained in recital (330) above.

(374)   As regards the claim that the PV business constitutes a
primary source of income for installers, further analysis of the questionnaire
replies submitted by the seven downstream operators (installers and project
developers) confirmed that the activity directly related to the like product under
investigation represented on average around 42 % of the total activity of these
operators and the profitability equalled on average 11 %. However, when taking
into account also their activities (not directly related to the product under
investigation), their overall importance increases substantially for three out of
the seven operators. As a result, the corresponding ratio would range from
around 45 % to 100 % during the IP. In addition, for the seven operators (installers
and project developers) the profitability of the PV activity including the
activities not directly linked to the product under investigation would amount
to 9% on average. Employment-wise, the PV activity including the activities not
directly linked to the product under investigation would amount to around 660 full-time
jobs in the IP for the seven operators. Apart from PV projects and installations
these operators were also active in wind energy installations and production of
electrical equipment.

(375)   It is considered that any
impact of measures on the downstream operators has to be primarily assessed on
their activity directly related to the product under investigation which in the
IP reached a profitability of 11 % on average. However, even if it is assessed
on the basis of the overall PV activity not directly related to the product under
investigation the conclusions would be similar to the one made at provisional
stage since, overall, the various factors taken into account, namely
profitability and possibility to absorb part of the duty, do not vary
significantly (the profitability decreases from 11 % on average to 9 % on
average). In reply to the final disclosure one party on which premises the
Commission had carried out a verification visit contested the representativity
of the conclusion on profitability of the installers and developers, which, as
far as it is concerned, would allegedly be based only on a single transaction.
This argument is dismissed as the Commission calculated the profitability of
the downstream operators, on the basis of all data submitted by the downstream
operators in their questionnaire replies.

(376)   Regarding the survey
conducted by AFASE amongst its members, it is firstly noted that all operators
had the opportunity to come forward at the initiation of the investigation and
to reply to the specific questionnaire designed for downstream operators requesting
the necessary information for the assessment of the impact of duties on these
operators. Secondly, the identity of the installers was not provided in the
survey which did not allow for a verification of e.g. the relevance and
reliability of the data provided. Thirdly, while a number of questions asked in
this survey concerned the installers' capacity to absorb the possible duties,
the survey lacked any reference to the profit achieved by these installers in
the IP, thus missing an important element for the evaluation of the impact of
measures. As a consequence no meaningful conclusions could be drawn from the
survey provided.

(377)   A
number of parties contested the conclusions in recitals (247) and (250) to the
provisional Regulation that the jobs in the downstream segment will be
negatively impacted in the short term and that the overall impact will be
negative but only to a limited extent in view of the fact that the PV market in
the Union is forecasted to grow in the mid- and long-term. Some parties further
claimed that in particular installers, who are dependent on the PV
installations, will suffer from the decline in demand.

(378)   The
possible job losses resulting from the imposition of the duties was further
analysed. In general terms, the information gathered during the investigation
confirmed that the downstream sector has been experiencing job losses as a
result of the contraction of the demand for PV installations in the Union of
about 5 GW between 2011 and 2012, as already stated in recital (246) to the
provisional Regulation. These job losses cannot be linked to the measures as
they reflected a market evolution. Moreover, a further contraction of demand is
foreseen in 2013 and 2014 and will most likely result in further job losses in
the PV sector. Similarly, such evolution of the demand was forecasted by major
research centres such as EPIA before the initiation of the investigation and
therefore such job losses cannot be attributed to the imposition of measures.

(379)   The
Union industry submitted a study by a consultant PriceWaterHouseCoopers ('PWC')
on the possible impact of measure on PV related jobs. The PWC study refers to
an earlier study by another consultant Prognos, which envisaged high job losses
in the PV market resulting from the imposition of measures, which was submitted
by AFASE prior to the imposition of provisional duties and which was addressed
in recitals (243) to (246) to the provisional Regulation. The PWC study
criticised the study by Prognos pointing to the fact that the total job losses
estimated by Prognos exceeded in fact the total number of existing PV jobs in
the Union. Regarding the impact of duties in the Union market, PWC reached
opposite conclusions than Prognos, forecasting a net positive impact on jobs in
the Union and that the benefits outweigh the possible negative effects of the
duties (e.g. on demand). In view of the absence of new substantiated arguments
on the impact of measures on the employment in the downstream sector, the
conclusions in recitals (247) to (250) to the provisional Regulation are
confirmed.

(380)   AFASE argued that the
Commission did not disclose the source of the margin of error of 20 % for the
direct PV jobs calculated for 2011 mentioned in recital (245) to the
provisional Regulation.

(381)   This margin of error of 20%,
which may apply upward or downward, became apparent during the verification
visit at EPIA. It shows the difficulty to assess precise figures on employment
in the downstream sector as there are few sources, often contradictory, of data
collection.

(382)   In reply to the final disclosure some
parties claimed that the Commission's analysis was silent about the fact that
the duties will only add to the loss of jobs resulting from the smaller number
of PV installations after 2011. It was argued that such job losses, in
particular in the downstream sector, are closely linked to the fact that the PV
installers are dependent on the solar installations. In addition, AFASE
criticised the Commission for not having properly considered the survey it
conducted amongst its members and a similar survey conducted by a UK Solar
Trade Association, which allegedly illustrated such dependence.

(383)   As regards the alleged
silence of the Commission concerning the impact of the duties on jobs,
reference is made to recitals (377) and (379) above, where the claims
concerning the impact of the measures on jobs in the PV sector are addressed
and where it is acknowledged that indeed the jobs in the downstream sector
might be affected in the short term due to the measures.

(384)   With regard to the survey
conducted by AFASE and the UK Solar Trade Association, in response to the final disclosure the identity of the
companies participating in the interview was provided. The surveys remained
however deficient, since for example certain replies were incomplete. The
analysis of the surveys showed the following. Concerning the survey by AFASE,
it is firstly noted that the majority of the 50 installers who replied to the
interview declared to be exclusively active in the PV market. 15 out of 50
installers declared to be also active in other non-PV activities such heating,
electrical installations, and wind to a certain extent. In case of the UK
survey, 21 out of 31 UK companies who replied to the interview had also other than
PV activities. This result shows that with regards to a nearly a half of the
project developers and installers, the finding set out in recital (247) to the
provisional Regulation on the ability to perform other activities such as
electrical and heating installations, plumbing and other green energies
installations, is correct. It is, however, recognized that this ability may
exist to a lesser extent than assumed in the provisional Regulation. Its
mitigating impact on job losses may therefore be less important than initially
assumed. Secondly, some of the operators surveyed by AFASE and the UK Solar
Trade Association have been using products produced in the Union and some
foresee buying non-Chinese products following the measures to avoid a price
increase. Thus, their dependence on the Chinese imports and the impact of the
measures is expected to be reduced as they can access products produced in the
Union. Thirdly, the estimation of the impact of the measures on the businesses of
all surveyed operators’ did not allow for firm conclusions as their assessment
was very diverse. Some companies were even unable to assess such impact. Fourthly,
also the answers to the question about the number of the PV projects that risk
cancelling in case of duties ranged from 'not many' to 'all projects' in the UK
survey. Some operators were unable to make an estimation. Finally, both surveys
lacked the question about the profitability of the economic operators
interviewed, which is important for the assessment of the possible absorption
of the price increase, if any, resulting from the duty.

(385)   Other parties claimed that
installers cannot easily change their activities or switch to other green
energy installations because of the very different technologies and know-how
involved. Therefore, should the duties be imposed, they would go out of
business. After final disclosure, this claim was
reiterated by one interested party, arguing that installers have invested
substantial resources in PV specialisation, such a specific training, which
would show that their main focus is on the PV sector and that they would not be
able to switch easily to other activities.

(386)   This argument was
insufficiently substantiated as it was not demonstrated what precise knowledge
an installer would need to acquire and how difficult and expensive it is to obtain
it. Irrespectively, the institutions acknowledge that installers have developed
know-how specific to the installation of PV modules. However, the development
of this know-how is relatively recent and adds to the primary expertise of the
installers being electrical and heating installations, plumbing etc. It also developed
in response to an unfair practice namely the massive inflow of dumped imports
from the PRC. Independently from the specialised skills of the employees of the
installers, the argument has to be considered in parallel with the analysis made
in recitals (378) and (382) above on the employment situation in the downstream
sector which in the short term might be negatively impacted but which, thanks
to sustainable trade, would lead to an increase in the employment of installers
in the mid- to long term. Therefore, the argument was rejected.

(387)   Several parties contested
the argument regarding the ability of the downstream operators to absorb partly
the possible price increase mentioned in recital (247) to the provisional
Regulation. Also this argument was insufficiently substantiated thus preventing
from assessing to which extent this allegation was accurate. As mentioned in
recital (374) above, profitability of the downstream cooperating operators related
directly to the product concerned was assessed at around 11 % on average which
leaves to the operators in question the possibility to absorb at least
partially some price increase if any. In this context, it is recalled as
mentioned in recital (335) above that the overall trend of prices is downward.
The argument is therefore rejected.

(388)   In reply to the final
disclosure some parties reiterated the claim of the serious risk of contraction
of demand for solar products in the Union as a result of the measures, which
according to these parties speaks against the measures. One party argued that
the solar energy currently has a high price elasticity of demand and even a
limited increase in the price of solar products would result in a severe
contraction of demand. This party estimated that an anti-dumping duty in the
range of 30 % may further contract demand by 8 GW whereas a duty of 50 % would
contract demand by 10 GW. In the same tone, AFASE referred to a study made by a
market analyst, which also foresees a contraction of demand of up to 2GW in
2013 as a result of a duty of 50 %, thus a contraction of a much smaller
magnitude.

(389)   Although different
contraction scenarios were submitted by parties during the investigation in
addition to the ones referred to above, they did not contain comparable
results. While it cannot be excluded that the duties might result in a
contraction of demand for PV installations, the quantification of such effect
is difficult to establish in view of the various elements that influence the
attractiveness of the PV installations in the Union (see for instance recital
(258) to the provisional Regulation). In addition, even if such contraction
were to take place in the short-term, the mid- and long-term benefits resulting
from fair trade are expected to outweigh the short term negative impact.
Finally, AFASE itself recognised that the assessment of the direct link between
the demand and the duties would only be available once duties are in place.
Therefore, this argument was rejected.

(390)   In the absence of any
further comments, recitals (243) and (250) to the provisional Regulation are
confirmed. The findings on the six service providers for which the PV related
activity constitutes only a small fraction of their broader activities (see
recital (370) above) do not change the conclusion contained in recital (250) to
the provisional Regulation nor does the distinction of the PV activity not
directly related to the product concerned of the seven project
developers/installers referred to in recital (374).

6.           Interest of the
end-users/consumers

(391)   Following the provisional
disclosure, some parties reiterated the argument that the duties would increase
the price of the product concerned. Consequently, there would be a decline in
demand for PV installations as they would be too expensive for consumers and
not attractive enough for the other investors.

(392)   As
already mentioned in recital (335) above, even if a temporary increase of
prices may happen as a result of the imposition of measures, the overall trend
of prices is downward as confirmed by several public sources. While it is
difficult to quantify the exact possible price increase resulting from the
measures and a consequent possible contraction of the demand, several elements
are recalled. Firstly, the product under investigation constitutes up to 50% of
the total cost of a PV installation and therefore the duty may be at least
partly absorbed. Secondly, the competition of the Union industry with the third
countries' producers, already present on the Union market, is likely to keep
the prices down. At the same time the Union industry should be able to achieve
better financial results thanks to the economies of scales resulting from a
better utilisation of the production plants and reduced cost of production. Thirdly,
the demand for PV installations is correlated not only with the price levels of
the product under investigation but also with the level of FITs. At present low
levels of demand, as compared to those achieved in 2011 and the IP, it is
expected that the FITs should not decrease as quickly as in the period
considered, allowing for continuous investment in PV projects. The argument was
therefore dismissed.

(393)   In reply to the final
disclosure one party contested the above reasoning. It claimed that the
downward price trend cannot be maintained after the imposition of the measures.
The party recalled that the measures represent a very significant cost increase
that cannot be fully offset by cost decreases and or imports from the third
countries. In addition, it was reiterated that the Union industry will not be
able to undertake new investments in plants and machinery and the downstream
operators can absorb a little if their profit is 11 %. Finally there is no
evidence that suggests that FITs might compensate the price increase.

(394)   It is recalled that contrary
to this claim it is not expected that the price increase resulting from the
measures may be fully offset but rather that a temporary increase in prices following
the measures is possible (see recital (247) to the provisional Regulation).
Indeed, such price increase may result from the difference in price levels
between the Chinese dumped prices and the non-Chinese products. Yet, the
information gathered during the investigation allows claiming that the eventual
price increase may be partly absorbed by a number of factors in view of the
profits in the downstream sector at the level of 11 %. Finally, regarding the
claim that there is no evidence that suggests that FITs might compensate the
price increase, it is reasonable to assume that FITs will be adjusted over time
in line with the development of prices for projects.

(395)   One party claimed that in fact
since March 2013 modules prices increased by 20% in Europe and that there is a
severe lack of stock since 2013. The argument was not substantiated and to the
contrary, the public information sources confirm a relative stability of prices
in the second quarter of 2013. Even if that information was correct, it would
only reflect the fact that following registration of imports, the risk of a
possible anti-dumping duty has been priced in. The argument was therefore
rejected.

(396)   Another party claimed that
the PV projects would not generate a return for an investor if the fall in FITs
is not correlated with falling project costs, including the price of modules,
as they represent a significant part of the costs in a given project. To this
end, it was claimed that the duties would put in question the viability of many
PV projects as they increase the price.

(397)   As mentioned in recital (335)
above, the overall trend of prices of the cells and modules is downward.
Furthermore, the importance of FIT with regard to the market is decreasing as
grid parity is likely to be achieved in several regions. On these grounds the
argument that the price of PV modules could have a negative impact on PV
projects including the question of their viability was rejected.

(398)   One interested party
provided an internal modelling to prove that the viability of many PV projects
was endangered if duties were applied.

(399)   This modelling did not allow
for a proper quantification as to what extent the attractiveness of the
investment in the PV installations (e.g. return on investment) could decline in
the event of increased prices of the cells and modules. Nevertheless, the
assumption that any duty would be entirely passed on to end-users or consumers,
used in the said modelling, is unlikely in view of the existing profit margins
of the downstream operators. Moreover, an investment decision is not only based
on the price of modules but also depends on many other factors including inter
alia the existence of a general favourable framework for PV installations
in a given country, the level of support respectively the electricity price
(for grid parity). Therefore, this argument has to be rejected.

(400)   In the absence of any
further comments, recitals (252) and (254) to the provisional Regulation are
confirmed.

7.           Other arguments

(401)   Following the provisional
disclosure, the argument that the Union industry is not capable of supplying
the Union market and that only the PRC possesses the capacity to supply the
Union market was reiterated.

(402)   The claim was addressed in
recital (256) to the provisional Regulation. Even if a more conservative
assumption on the Union production capacity was made (see recital (183) above),
the joint Union and third countries spare capacity would be sufficient to
complement in the short-term the potential decrease of Chinese imports.
Also in the medium-term it is reasonable to assume that the Union industry will
expand its production capacity to cover demand which will allow it to achieve
economies of scale, which in turn would allow for further price reduction.
Therefore, this argument was rejected.

(403)   Some parties reiterated the
argument regarding the difficulty in achieving the Commission's green energy 2020
goals if duties are imposed. This argument has already been addressed in the
provisional Regulation recitals (257) to (259), therefore, in the absence of
any further elements, recitals (257) and (259) to the provisional Regulation
are confirmed.

8.           Conclusion on Union
interest

(404)   In view of the above, the
assessment in recitals (260) to (261) to the provisional Regulation is
confirmed.

(405)   Therefore, there are no
compelling reasons against the imposition of definitive measures on imports of
the product concerned originating in the PRC.

G.        DEFINITIVE ANTI-DUMPING
MEASURES

(406)   In view of the conclusions
reached with regard to dumping, injury, causation and Union interest, definitive
anti-dumping measures should be imposed in order to prevent further injury
being caused to the Union industry by the dumped imports.

1.           Injury elimination level

(407)   For the purpose of
determining the level of these measures, account was taken of the dumping
margins found and the amount of duty necessary to eliminate the injury
sustained by the Union producers, without exceeding the dumping margins found.

(408)   Following the provisional
disclosure one interested party contested the 10% profit margin used to
calculate the injury elimination level claiming that this level was too high
for this industry in the current market circumstances and it was used both for
modules and cells. It is noted that the legal benchmark to determine the profit
before tax for the purpose of calculating the injury elimination level is
whether such profit could be reasonably achieved by the industry under normal
conditions of competition, i.e. in the absence of dumping. In line with the jurisprudence
of the General Court, such profit is the one realised at the beginning of the
period considered, i.e. before the increase in dumped imports. Therefore the
target profit was adjusted at 8% on the basis of the weighted average profit
realised by the Union industry in 2009 and 2010 for modules and cells when
profitable.

(409)   Following the final
disclosure, the Union industry claimed that the profitability of the year 2010
should be used as the level of profitability that Union industry could
reasonably achieve in the absence of dumped imports rather than the average
profit margin of the years 2009 and 2010. In this respect, it was argued that,
the profitability in 2009 was insufficient and the circumstances in the two
years were clearly distinct given in particular the development in consumption
in 2010 which alleviated the effects of dumping in that year. In this regard,
it should be noted that it is not relevant whether the average profit margin
realised by the Union industry was ‘sufficient’ when determining the injury
elimination level. As already stated in recital (264) to the provisional
Regulation the injury elimination level should be based on the profit which can
be reasonably achieved in the absence of dumped imports. It is the
Investigating Authorities’ practice to consider that this level had been
reached at the beginning of the period considered. As in this case the Union
industry realised losses with regard to the sales of cells at the beginning of
the period considered in 2009, this methodology was unsuitable and it was
deemed more reliable to base the determination of the injury elimination level
on the average profit margin of the first and the second year of the period
considered. In this regard it was also considered that it is irrelevant that
circumstances were different in these two years.

(410)   Another party reiterated
that the different target profits should be established for modules and cells,
as the profitability of these product types showed different trends during the
period considered. While indicators were shown separately for each product
type, the conclusions reached for each indicator refer to the product under
investigation as a whole. It is also recalled that modules and cells are one
single product and therefore the dumping margins and the injury elimination
level were established on this basis.

(411)   Moreover, the revised sample
of unrelated importers post-importation costs (modified for the reasons
explained in recital (21) ) had an impact on the injury margins calculated.
Finally, all underselling margins were affected by the correction of CIF
prices, the exclusion of wafers and the new target profit.

(412)   One party argued that sales
of the sampled Union producers focused on the high-end market, such as the
residential/small commercial sector, which attracted higher FITs and suggested
that the Union industry’s sales price should therefore be adjusted accordingly.
It should be noted that this claim should not be decisive for the calculation
of the injury margin, since the investigation showed that Union producers were
not profitable.

(413)   In the absence of other
comments concerning the injury elimination level, the methodology described in
recitals (263) to (266) to the provisional Regulation is confirmed.

2.           Definitive measures

(414)   In view of the conclusions
reached with regard to dumping, injury, causation and Union interest and in
accordance with Article 9(4) of the basic Regulation, it is considered that
definitive anti-dumping measures should be imposed on imports of crystalline
silicon PV modules or panels and cells of the type used in crystalline silicon PV
modules or panels, originating in or consigned from the PRC at the level of the
lower of the dumping and the injury margins found, in accordance with the
lesser duty rule. In this case, the duty rate should accordingly be set at the
level of the injury margins found.

(415)   It is noted that an
anti-subsidy investigation was carried out in parallel with the anti-dumping
investigation. In view of the use of the lesser duty rule and the fact that the
definitive subsidy margins are lower than the injury elimination level, it is
considered appropriate to impose a definitive countervailing duty at the level
of the established definitive subsidy margins and then impose a definitive
anti-dumping duty up to the relevant injury elimination level. On the basis of
the above, the rate at which such duties will be imposed are set as follows:

Company || Subsidy margin || Dumping margin || Injury elimination level || Countervailing duty || Anti-dumping duty

Changzhou Trina Solar Energy Co. Ltd; Trina Solar (Changzhou) Science & Technology Co. Ltd; Changzhou Youze Technology Co. Ltd; Trina Solar Energy (Shanghai) Co. Ltd; Yancheng Trina Solar Energy Technology Co. Ltd || 3,5 % || 90,3 % || 48,2 % || 3,5 % || 44,7 %

Delsolar (Wujiang) Ltd || de minimis || 111,5 % || 64,9 % || 0,0 % || 64,9 %

Jiangxi LDK Solar Hi-Tech Co. Ltd LDK Solar Hi-Tech (Hefei) Co. Ltd LDK Solar Hi-Tech (Nanchang) Co. Ltd LDK Solar Hi-Tech (Suzhou) Co. Ltd || 11,5 % || 91,9 % || 58,2 % || 11,5 % || 46,7 %

JingAo Solar Co. Ltd Shanghai JA Solar Technology Co. Ltd JA Solar Technology Yangzhou Co. Ltd Hefei JA Solar Technology Co. Ltd Shanghai JA Solar PV Technology Co. Ltd || 5,0 % || 97,5 % || 56,5 % || 5,0 % || 51,5 %

Jinko Solar Co. Ltd Jinko Solar Import and Export Co. Ltd ZHEJIANG JINKO SOLAR CO. LTD ZHEJIANG JINKO SOLAR TRADING CO. LTD || 6,5 % || 88,1 % || 47,7 % || 6,5 % || 41,2 %

Jinzhou Yangguang Energy Co. Ltd Jinzhou Huachang Photovoltaic Technology Co. Ltd Jinzhou Jinmao Photovoltaic Technology Co. Ltd Jinzhou Rixin Silicon Materials Co. Ltd Jinzhou Youhua Silicon Materials Co. Ltd || 6,4 % || 53,8 % || 33,7 % || 6,4 % || 27,3 %

RENESOLA ZHEJIANG LTD RENESOLA JIANGSU LTD || 4,6 % || 88,1 % || 47,7 % || 4,6 % || 43,1 %

Wuxi Suntech Power Co. Ltd Suntech Power Co. Ltd Wuxi Sun-Shine Power Co. Ltd Luoyang Suntech Power Co. Ltd Zhenjiang Ren De New Energy Science Technology Co. Ltd Zhenjiang Rietech New Energy Science Technology Co. Ltd || 4,9 % || 73,2 % || 46,3 % || 4,9 % || 41,4 %

Yingli Energy (China) Co. Ltd Baoding Tianwei Yingli New Energy Resources Co. Ltd Hainan Yingli New Energy Resources Co. Ltd Hengshui Yingli New Energy Resources Co. Ltd Tianjin Yingli New Energy Resources Co. Ltd Lixian Yingli New Energy Resources Co. Ltd Baoding Jiasheng Photovoltaic Technology Co. Ltd Beijing Tianneng Yingli New Energy Resources Co. Ltd Yingli Energy (Beijing) Co. Ltd || 6,3 % || 93,3 % || 41,8 % || 6,3 % || 35,5 %

Other co-operating companies in the anti-dumping investigation (with the exception of the companies subject to the residual duty in the parallel anti- subsidy Implementing Regulation (EU) No XXX/2013) [17] (Annex I) || 6,4 % || 88,1 % || 47,7 % || 6,4 % || 41,3 %

Other co-operating companies in the anti-dumping investigation, subject to the residual duty in the parallel anti- subsidy Implementing Regulation (EU) No XXX/2013) (Annex II) || 11,5 % || 88,1 % || 47,7 % || 11,5 % || 36,2 %

All other companies || 11,5 % || 111,5 % || 64,9 % || 11,5 % || 53,4 %

(416)   The individual company
anti-dumping duty rates specified in this Regulation were established on the
basis of the findings of the present investigation. Therefore, they reflect the
situation found during that investigation in respect to these companies. These
duty rates (as opposed to the countrywide duty applicable to ‘all other
companies’) are thus exclusively applicable to imports of the products
originating in the PRC and produced by the companies and thus by the specific
legal entities mentioned. Imports of the product concerned manufactured by any
other company not specifically mentioned in the operative part of this
Regulation with its name and address, including entities related to those
specifically mentioned, cannot benefit from these rates and shall be subject to
the duty rate applicable to ‘all other companies’.

(417)   Following disclosure, the GOC
argued that the weighted average duty rate for the companies listed in Annex I
and Annex II is in violation of the WTO Anti-Dumping Agreement, since it is
allegedly based on the weighted average of the duties calculated separately for
the sampled exporting producers of cells and modules. This assessment is,
however, incorrect. For the sampled exporting producers, a uniform duty rate
has been calculated for all their exports of the product concerned – and the
majority of exporting producers did export cells and modules. The assessment
that duties were separately calculated for exporting producers of cells and
modules is therefore incorrect, and the argument can therefore not be accepted.

(418)   Should the exports by one of
the companies benefiting from lower individual duty rates increase
significantly in volume after the imposition of the measures concerned, such an
increase in volume could be considered as constituting in itself a change in
the pattern of trade due to the imposition of measures within the meaning of
Article 13(1) of the basic Regulation. In such circumstances and provided the
conditions are met an anti-circumvention investigation may be initiated. This
investigation may, inter alia, examine the need for the removal of individual
duty rates and the consequent imposition of a country-wide duty.

(419)   Any claim requesting the
application of an individual anti-dumping duty rate (e.g. following a change in
the name of the entity or following the setting up of new production or sales
entities) should be addressed to the Commission forthwith with all relevant
information, in particular any modification in the company’s activities linked
to production, domestic and export sales associated with, for instance, that
name change or that change in the production and sales entities. If
appropriate, this Regulation will then be amended accordingly by updating the
list of companies benefiting from individual anti-dumping duty rates.

(420)   In order to ensure equal
treatment between any new exporters and the cooperating companies not included
in the sample, mentioned in Annex I and Annex II to this Regulation, provision
should be made for the weighted average duty imposed on the latter companies to
be applied to any new exporters which would otherwise be entitled to a review
pursuant to Article 11(4) of the basic Regulation.

(421)   Measures
are imposed to allow the producers in the Union to recover from the injurious
effect of dumping. To the extent that there would be any initial imbalance
between the potential benefit for producers in the Union and the cost for other
economic operators in the Union, this imbalance could be offset by an increase
and/or restart of the production in the Union.

(422)   However,
the envisaged scenario of increased production in the Union may not be in line
with the market development in this volatile market. As indicated in recital
(108) to the provisional Regulation, Union consumption of modules increased by
264 % between 2009 and 2011, only to decrease by 43 percentage points during
the 6 month period between 2011 and the IP. The volatility is even more
impressive when looking at the period of 2006-2011, where the Union consumption
of modules increased from less than 1 GW to almost 20 GW or an increase of around
2000% in just five years. This volatility is expected to continue, and
forecasts published by business associations show differences of 100% and more
between the different scenarios even for the medium term period of 2014-2015.

(423)   For
these reasons, it is considered appropriate, in such exceptional circumstances,
to limit the duration of measures to a period of two years only.

(424)   This period should be enough for the producers in the Union to
increase and/or restart their production, while at the same time not
significantly endanger the situation of other economic operators in the Union.
It is considered that the period of two years will be the most appropriate to
analyse whether the imposition of measures had indeed the effect of increasing
European production and thereby balancing the negative effects on other
economic operators in the Union.

(425)   Following
final disclosure, one Union producer raised the argument that the limited
duration of 2 years is too short to recover from the injury suffered. In
addition it was argued that a duration of 2 years would not allow Union
producers to file business plans for the current and the coming business year.
In this respect, it is noted that the duration of the measures until December
2015, which should be sufficient for Union producers to file business plans
until 2015.

(426)   Furthermore,
the Union producer did not contest the reasons for which the duration was
limited to two years, notably the volatility of the market. The producer even
explicitly appreciated a review in case the measures need to be changed due to
changed market situation. Since the likelihood of a change in market
circumstances within two years is indeed high in this volatile market, it is
considered appropriate to limit the measures to two years from the outset.

(427)   Following
final disclosure, the complainant argued that two years are insufficient to
invest in production, referring to recital (424) above. However, due to the
substantial spare capacity of the Union industry, an increase in production can
be done through a better utilisation of the existing production capacities,
which should be feasible without significant additional investments.

(428)   The complainant
further argued that an imposition of definitive anti-dumping duties for a
period of two years is insufficient for the Union Industry to recover from the
injurious effects of past dumping. However, the imposition of anti-dumping
duties cannot only look at the interests of the Union Industry alone, but needs
to balance the potential benefit for producers in the Union and the cost for
other economic operators in the Union. On this basis, the decision to limit
measures to two years is maintained.

(429)   All parties were informed of
the essential facts and considerations on the basis of which it was intended to
recommend the imposition of a definitive anti-dumping duty on imports of crystalline
silicon PV modules or panels and cells of the type used in crystalline silicon PV
modules or panels, originating in or consigned from the PRC and the definitive
collection of the amounts secured by way to the provisional duty (final
disclosure). All parties were granted a period within which they could make
comments on the final disclosure.

(430)   The oral and written
comments submitted by the interested parties were considered and taken into
account where appropriate.

3.           Retroactivity

(431)   As
concerns a possible retroactive application of anti-dumping measures, the
criteria set out in Article 10(4) of the basic Regulation have to be evaluated.
Pursuant to Article 10(4)(b), one key criterion which needs to be fulfilled is
that there is "a further substantial rise in imports" "in
addition to the level of imports which caused injury during the investigation
period".

(432)   A
comparison of monthly average imports[18] of
modules and cells with monthly average imports for the period under
registration (March 2013 ‑ June 2013) shows a sharp decrease of import
volumes after the IP. Indeed, as stated in recital (110) to the provisional
Regulation, the monthly average import quantity of Chinese modules and cells
amounted to 1 250 MW[19] during the IP. For comparison, during the period of registration
the monthly average import volume of Chinese modules and cells was only around
half as high.

(433)   Alternatively,
given the volatile nature of the market, the further substantial rise in
imports could be assessed in relative rather than absolute terms. To assess
whether there is a further substantial rise in imports in relative terms, it is
necessary to compare the import volumes with the consumption on the Union market,
i.e. the consumption would have to decrease at a substantially higher rate than
the decrease in Chinese imports. Since the import volume of Chinese modules and
cells during the period of registration was only half as high as during the IP,
this decrease in consumption would need to be substantially higher than 50%.
While no precise information concerning the consumption during the period under
registration is available, there are no indications that the consumption
decreased by more than 50%.

(434)   For
the reasons stated above, the criterion concerning a further substantial rise
in imports is therefore not met. As a consequence, it is concluded that the
definitive anti-dumping duty shall not be levied retroactively prior to the
date of application of provisional measures.

H. FORM OF THE MEASURES

(435)   Subsequent
to the adoption of the provisional anti-dumping measures, a group of
cooperating exporting producers, including their related companies in the PRC
and in the European Union, and together with the CCCME offered a joint price
undertaking in accordance with Article 8(1) of the basic Regulation. The
undertaking offer was also supported by the Chinese authorities.

(436)   The
Commission examined the offer, and by Decision 2013/423/EU[20] accepted this undertaking
offer. As already indicated in recitals (3), (4) and (7) of this Decision, in
order to assess whether the price undertaking removes the injurious effect of
dumping, the Commission has analysed any changed market circumstances of a
lasting nature concerning, inter alia, the current export prices and the injury
elimination level which was found lower than the level of dumping.

(437)   Subsequent
to Decision 2013/423/EU, the exporting producers together with CCCME submitted
a notification to amend their initial undertaking offer. They requested to
revise the undertaking to take account of the exclusion of wafers from the
product scope as described in recitals (31) and (72). In addition, a number of
additional exporters, within the deadline stipulated in Article 8(2) of the
basic Regulation, requested to be included in the undertaking.

(438)   By
Decision 2013/XXX/EU,[21] the Commission confirmed the acceptance
of the undertaking offered by exporters listed in the Annex to that Decision with
regards to the definitive duties.

HAS ADOPTED THIS REGULATION:

Article 1

1.           A definitive anti-dumping
duty is hereby imposed on imports of crystalline silicon photovoltaic modules
or panels and cells of the type used in crystalline silicon photovoltaic
modules or panels (the cells have a thickness not exceeding 400 micrometres),
currently falling within CN codes ex 8501 31 00, ex 8501 32 00, ex 8501 33 00,
ex 8501 34 00, ex 8501 61 20, ex 8501 61 80, ex 8501 62 00, ex 8501 63 00, ex
8501 64 00 and ex 8541 40 90 (TARIC codes 8501 31 00 81, 8501 31 00 89, 8501 32
00 41, 8501 32 00 49, 8501 33 00 61, 8501 33 00 69, 8501 34 00 41, 8501 34 00
49, 8501 61 20 41, 8501 61 20 49, 8501 61 80 41, 8501 61 80 49, 8501 62 00 61,
8501 62 00 69, 8501 63 00 41, 8501 63 00 49, 8501 64 00 41, 8501 64 00 49, 8541
40 90 21, 8541 40 90 29, 8541 40 90 31 and 8541 40 90 39) and originating in or
consigned from the People’s Republic of China, unless they are in transit in
the sense of Article V GATT.

The following product types are excluded from
the definition of the product concerned:

–
solar chargers that consist of less than six
cells, are portable and supply electricity to devices or charge batteries,

–
thin film photovoltaic products,

–
crystalline silicon photovoltaic products that
are permanently integrated into electrical goods, where the function of the
electrical goods is other than power generation, and where these electrical
goods consume the electricity generated by the integrated crystalline silicon
photovoltaic cell(s),

–
modules or panels with a output voltage not
exceeding 50 V DC and a power output not exceeding 50 W solely for direct use
as battery chargers in systems with the same voltage and power characteristics.

2.           The rate of the definitive
anti-dumping duty applicable to the net, free-at-Union-frontier price, before
duty, of the products described in paragraph 1 and produced by the companies
listed below shall be as follows:

Company || Duty rate || TARIC additional code

Changzhou Trina Solar Energy Co. Ltd; Trina Solar (Changzhou) Science & Technology Co. Ltd; Changzhou Youze Technology Co. Ltd; Trina Solar Energy (Shanghai) Co. Ltd; Yancheng Trina Solar Energy Technology Co. Ltd || 44,7 % || B791

Delsolar (Wujiang) Ltd || 64,9 % || B792

Jiangxi LDK Solar Hi-Tech Co. Ltd LDK Solar Hi-Tech (Nanchang) Co. Ltd LDK Solar Hi-Tech (Suzhou) Co. Ltd || 46,7 % || B793

LDK Solar Hi-Tech (Hefei) Co. Ltd || 46,7 % || B927

JingAo Solar Co. Ltd Shanghai JA Solar Technology Co. Ltd JA Solar Technology Yangzhou Co. Ltd Hefei JA Solar Technology Co. Ltd Shanghai JA Solar PV Technology Co. Ltd || 51,5 % || B794

Jinko Solar Co.Ltd Jinko Solar Import and Export Co. Ltd ZHEJIANG JINKO SOLAR CO. LTD ZHEJIANG JINKO SOLAR TRADING CO. LTD || 41,2 % || B845

Jinzhou Yangguang Energy Co. Ltd Jinzhou Huachang Photovoltaic Technology Co. Ltd Jinzhou Jinmao Photovoltaic Technology Co. Ltd Jinzhou Rixin Silicon Materials Co. Ltd Jinzhou Youhua Silicon Materials Co. Ltd || 27,3 % || B795

RENESOLA ZHEJIANG LTD RENESOLA JIANGSU LTD || 43,1 % || B921

Wuxi Suntech Power Co. Ltd Suntech Power Co. Ltd Wuxi Sunshine Power Co. Ltd Luoyang Suntech Power Co. Ltd Zhenjiang Ren De New Energy Science Technology Co. Ltd Zhenjiang Rietech New Energy Science Technology Co. Ltd || 41,4 % || B796

Yingli Energy (China) Co. Ltd Baoding Tianwei Yingli New Energy Resources Co. Ltd Hainan Yingli New Energy Resources Co. Ltd Hengshui Yingli New Energy Resources Co. Ltd Tianjin Yingli New Energy Resources Co. Ltd Lixian Yingli New Energy Resources Co. Ltd Baoding Jiasheng Photovoltaic Technology Co. Ltd Beijing Tianneng Yingli New Energy Resources Co. Ltd Yingli Energy (Beijing) Co. Ltd || 35,5 % || B797

Other co-operating companies in the anti-dumping investigation (with the exception of the companies subject to the residual duty in the parallel anti- subsidy Implementing Regulation (EU) No XXX/2013)[22] (Annex I) || 41,3 % ||

Other co-operating companies in the anti-dumping investigation, subject to the residual duty in the parallel anti- subsidy Implementing Regulation (EU) No XXX/2013) (Annex II) || 36,2 % ||

All other companies || 53,4 % || B999

3.           Unless otherwise
specified, the provisions in force concerning customs duties shall apply.

4.           Where any new exporting
producer in the People's Republic of China provides sufficient evidence to the Commission
that:

–
it did not export to the Union the product
described in paragraph 1 in the period between 1 July 2011 and 30 June 2012
(investigation period),

–
it is not related to any exporter or producer in
the People's Republic of China which is subject to the anti-dumping measures
imposed by this Regulation,

–
it has actually exported to the Union the
product concerned after the investigation period on which the measures are
based, or it has entered into an irrevocable contractual obligation to export a
significant quantity to the Union,

the Council, acting by simple majority on a
proposal submitted by the Commission after consulting the Advisory Committee, may
amend paragraph 2 by adding the new exporting producer to the cooperating
companies not included in the sample and thus subject to the weighted average duty
of 41,3 %.

Article 2

1.           The amounts secured by way
of the provisional anti- dumping duty pursuant to Regulation (EU) No 513/2013 on
imports of wafers (the wafers have a thickness not exceeding 400 micrometers)
and modules or panels with a output voltage not
exceeding 50 V DC and a power output not exceeding 50 W solely for direct use
as battery chargers in systems with the same voltage and power characteristics originating in or consigned from the PRC shall be released.

2.           The amounts secured by way
of the provisional anti-dumping duty pursuant to Regulation (EU) No 513/2013 on
imports of crystalline silicon photovoltaic modules or panels and cells of the
type used in crystalline silicon photovoltaic modules or panels (the cells have
a thickness not exceeding 400 micrometres), currently falling within CN codes
ex 8501 31 00, ex 8501 32 00, ex 8501 33 00, ex 8501 34 00, ex 8501 61 20, ex
8501 61 80, ex 8501 62 00, ex 8501 63 00, ex 8501 64 00 and ex 8541 40 90
(TARIC codes 8501 31 00 81, 8501 31 00 89, 8501 32 00 41, 8501 32 00 49, 8501
33 00 61, 8501 33 00 69, 8501 34 00 41, 8501 34 00 49, 8501 61 20 41, 8501 61
20 49, 8501 61 80 41, 8501 61 80 49, 8501 62 00 61, 8501 62 00 69, 8501 63 00
41, 8501 63 00 49, 8501 64 00 41, 8501 64 00 49, 8541 40 90 21, 8541 40 90 29,
8541 40 90 31 and 8541 40 90 39) and originating in or consigned from the
People’s Republic of China, unless they are in transit in the sense of Article
V GATT, shall be definitively collected. The amounts secured in excess of the
definitive rate of anti-dumping duties shall be released.

Article 3

1.           Imports declared for
release into free circulation for products currently falling within CN code ex
8541 40 90 (TARIC codes 8541 40 90 21, 8541 40 90 29, 8541 40 90 31 and 8541 40
90 39) which are invoiced by companies from which undertakings are accepted by
the Commission and whose names are listed in the Annex of Decision 2013/XXX/EU[23], shall
be exempt from the anti-dumping duty imposed by Article 1, on condition that:

(a)
a company listed in the Annex of Decision 2013/XXX/EU manufactured, shipped and invoiced
directly the products referred to above or via its related company also listed
in the Annex of Decision 2013/XXX/EU
either to their related companies in the Union acting as an importer and
clearing the goods for free circulation in the Union or to the first
independent customer acting as an importer and clearing the goods for free
circulation in the Union; and

(b)
such imports are accompanied by an undertaking
invoice which is a commercial invoice containing at least the elements and the
declaration stipulated in Annex III of this Regulation

(c)
such imports are accompanied by an Export
Undertaking Certificate according to Annex IV of this Regulation

(d)
the goods declared and presented to customs
correspond precisely to the description on the undertaking invoice.

2.           A customs debt shall be
incurred at the time of acceptance of the declaration for release into free
circulation:

(a)
whenever it is established, in respect of
imports described in paragraph 1, that one or more of the conditions listed in
that paragraph are not fulfilled; or

(b)
when the Commission withdraws its acceptance of
the undertaking pursuant to Article 8(9) of Regulation (EC) No 1225/2009
in a Regulation or Decision which refers to particular transactions and
declares the relevant undertaking invoices as invalid.

Article 4

The companies from which undertakings are
accepted by the Commission and whose names are listed in the Annex of Decision
2013/XXX/EU and subject to certain
conditions specified therein, will also issue an invoice for transactions which
are not exempted from the anti-dumping duties. This invoice is a commercial
invoice containing at least the elements stipulated in Annex V of this
Regulation.

Article5

This Regulation shall enter into force on
the day following that of its publication in the Official Journal of the
European Union. It shall be in force for a period of 2 years.

This
Regulation shall be binding in its entirety and directly applicable in all Member
States.

Done at Brussels,

For
the Council

The
President

ANNEX I

Name of the Company || TARIC additional code

Anhui Schutten Solar Energy Co. Ltd Quanjiao Jingkun Trade Co. Ltd || B801

Anji DaSol Solar Energy Science & Technology Co. Ltd || B802

Canadian Solar Manufacturing (Changshu) Inc. Canadian Solar Manufacturing (Luoyang) Inc. CSI Cells Co. Ltd CSI Solar Power (China) Inc. || B805

Changzhou Shangyou Lianyi Electronic Co. Ltd || B807

CHINALAND SOLAR ENERGY CO. LTD || B808

CEEG Nanjing Renewable Energy Co. Ltd CEEG (Shanghai) Solar Science Technology Co. Ltd China Sunergy (Nanjing) Co. Ltd China Sunergy (Shanghai) Co. Ltd China Sunergy (Yangzhou) Co. Ltd || B809

Chint Solar (Zhejiang) Co. Ltd || B810

ChangZhou EGing Photovoltaic Technology Co. Ltd || B811

ANHUI RINENG ZHONGTIAN SEMICONDUCTOR DEVELOPMENT CO. LTD. CIXI CITY RIXING ELECTRONICS CO. LTD. HUOSHAN KEBO ENERGY & TECHNOLOGY CO. LTD. || B812

CNPV Dongying Solar Power Co. Ltd || B813

CSG PVtech Co. Ltd || B814

DCWATT POWER Co. Ltd || B815

Dongfang Electric (Yixing) MAGI Solar Power Technology Co. Ltd || B816

EOPLLY New Energy Technology Co. Ltd SHANGHAI EBEST SOLAR ENERGY TECHNOLOGY CO. LTD JIANGSU EOPLLY IMPORT & EXPORT CO. LTD || B817

Era Solar Co. Ltd || B818

ET Energy Co. Ltd ET Solar Industry Limited || B819

GD Solar Co. Ltd || B820

Guodian Jintech Solar Energy Co. Ltd || B822

Hangzhou Bluesun New Material Co. Ltd || B824

Hangzhou Zhejiang University Sunny Energy Science and Technology Co. Ltd Zhejiang Jinbest Energy Science and Technology Co. Ltd || B825

Hanwha SolarOne Co. Ltd || B929

Hanwha SolarOne (Qidong) Co. Ltd || B826

Hengdian Group DMEGC Magnetics Co. Ltd || B827

HENGJI PV-TECH ENERGY CO. LTD. || B828

Himin Clean Energy Holdings Co. Ltd || B829

Jetion Solar (China) Co. Ltd Junfeng Solar (Jiangsu) Co. Ltd Jetion Solar (Jiangyin) Co. Ltd || B830

Jiangsu Green Power PV Co. Ltd || B831

Jiangsu Hosun Solar Power Co. Ltd || B832

Jiangsu Jiasheng Photovoltaic Technology Co. Ltd || B833

Jiangsu Runda PV Co. Ltd || B834

Jiangsu Sainty Machinery Imp. And Exp. Corp. Ltd Jiangsu Sainty Photovoltaic Systems Co. Ltd || B835

Jiangsu Seraphim Solar System Co. Ltd || B836

Changzhou Shunfeng Photovoltaic Materials Co. Ltd Jiangsu Shunfeng Photovoltaic Electronic Power Co. Ltd Jiangsu Shunfeng Photovoltaic Technology Co. Ltd || B837

Jiangsu Sinski PV Co. Ltd || B838

Jiangsu Sunlink PV Technology Co. Ltd || B839

Jiangsu Zhongchao Solar Technology Co. Ltd || B840

Jiangxi Risun Solar Energy Co. Ltd || B841

Jiangyin Hareon Power Co. Ltd Taicang Hareon Solar Co. Ltd Hareon Solar Technology Co. Ltd Hefei Hareon Solar Technology Co. Ltd Jiangyin Xinhui Solar Energy Co. Ltd Altusvia Energy (Taicang) Co, Ltd || B842

Jinggong P-D Shaoxing Solar Energy Tech Co. Ltd || B844

Juli New Energy Co. Ltd || B846

Jumao Photonic (Xiamen) Co. Ltd || B847

Kinve Solar Power Co. Ltd (Maanshan) || B849

GCL SOLAR POWER (SUZHOU) LIMITED GCL-Poly Solar Power System Integration (Taicang) Co. Ltd GCL Solar System (Suzhou) Limited GCL-Poly (Suzhou) Energy Limited Jiangsu GCL Silicon Material Technology Development Co. Ltd Jiangsu Zhongneng Polysilicon Technology Development Co. Ltd Konca Solar Cell Co. Ltd Suzhou GCL Photovoltaic Technology Co. Ltd || B850

Lightway Green New Energy Co. Ltd Lightway Green New Energy (Zhuozhou) Co. Ltd || B851

Motech (Suzhou) Renewable Energy Co. Ltd || B852

Nanjing Daqo New Energy Co. Ltd || B853

LEVO SOLAR TECHNOLOGY CO. LTD NICE SUN PV CO. LTD || B854

Ningbo Jinshi Solar Electrical Science & Technology Co. Ltd || B857

Ningbo Komaes Solar Technology Co. Ltd || B858

Ningbo Osda Solar Co. Ltd || B859

Ningbo Qixin Solar Electrical Appliance Co. Ltd || B860

Ningbo South New Energy Technology Co. Ltd || B861

Ningbo Sunbe Electric Ind Co. Ltd || B862

Ningbo Ulica Solar Science & Technology Co. Ltd || B863

Perfectenergy (Shanghai) Co. Ltd || B864

Perlight Solar Co. Ltd || B865

Phono Solar Technology Co. Ltd Sumec Hardware & Tools Co. Ltd || B866

RISEN ENERGY CO. LTD || B868

SHANDONG LINUO PHOTOVOLTAIC HI-TECH CO. LTD || B869

SHANGHAI ALEX NEW ENERGY CO. LTD SHANGHAI ALEX SOLAR ENERGY SCIENCE & TECHNOLOGY CO. LTD || B870

BYD(Shangluo)Industrial Co.Ltd Shanghai BYD Co. Ltd || B871

Shanghai Chaori International Trading Co. Ltd Shanghai Chaori Solar Energy Science & Technology Co. Ltd || B872

Propsolar (Zhejiang) New Energy Technology Co. Ltd Shanghai Propsolar New Energy Co. Ltd || B873

Lianyungang Shenzhou New Energy Co. Ltd Shanghai Shenzhou New Energy Development Co. Ltd SHANGHAI SOLAR ENERGY S&T CO. LTD || B875

Jiangsu ST-Solar Co. Ltd Shanghai ST-Solar Co. Ltd || B876

Shanghai Topsolar Green Energy Co. Ltd || B877

Shenzhen Sacred Industry Co. Ltd || B878

Leshan Topray Cell Co. Ltd Shanxi Topray Solar Co. Ltd Shenzhen Topray Solar Co. Ltd || B880

Shanghai Sopray New Energy Co. Ltd Sopray Energy Co. Ltd || B881

Ningbo Sun Earth Solar Energy Co. Ltd NINGBO SUN EARTH SOLAR POWER CO. LTD SUN EARTH SOLAR POWER CO. LTD || B882

TDG Holding Co. Ltd || B884

Tianwei New Energy (Chengdu) PV Module Co. Ltd Tianwei New Energy Holdings Co. Ltd Tianwei New Energy (Yangzhou) Co. Ltd || B885

Wenzhou Jingri Electrical and Mechanical Co. Ltd || B886

Winsun New Energy Co. Ltd || B887

Wuhu Zhongfu PV Co. Ltd || B889

Wuxi Saijing Solar Co. Ltd || B890

Wuxi Solar Innova PV Co. Ltd || B892

Wuxi Machinery & Equipment Import & Export Co. Ltd Wuxi Taichang Electronic Co. Ltd Wuxi Taichen Machinery & Equipment Co. Ltd || B893

Shanghai Huanghe Fengjia Photovoltaic Technology Co. Ltd State-run Huanghe Machine-Building Factory Import and Export Corporation Xi’an Huanghe Photovoltaic Technology Co. Ltd || B896

Wuxi LONGi Silicon Materials Co. Ltd Xi’an LONGi Silicon Materials Corp. || B897

Years Solar Co. Ltd || B898

Yuhuan BLD Solar Technology Co. Ltd Zhejiang BLD Solar Technology Co. Ltd || B899

Yuhuan Sinosola Science & Technology Co. Ltd || B900

Yunnan Tianda Photovoltaic Co. Ltd || B901

Zhangjiagang City SEG PV Co. Ltd || B902

Zhejiang Global Photovoltaic Technology Co. Ltd || B904

Zhejiang Heda Solar Technology Co. Ltd || B905

Zhejiang Jiutai New Energy Co. Ltd Zhejiang Topoint Photovoltaic Co. Ltd || B906

Zhejiang Kingdom Solar Energy Technic Co. Ltd || B907

Zhejiang Koly Energy Co. Ltd || B908

Zhejiang Longbai Photovoltaic Tech Co. Ltd || B909

Zhejiang Mega Solar Energy Co. Ltd Zhejiang Fortune Photovoltaic Co. Ltd || B910

Zhejiang Shuqimeng Photovoltaic Technology Co. Ltd || B911

Zhejiang Shinew Photoelectronic Technology Co. Ltd || B912

Zhejiang SOCO Technology Co. Ltd || B913

Zhejiang Sunflower Light Energy Science & Technology Limited Liability Company Zhejiang Yauchong Light Energy Science & Technology Co. Ltd || B914

Zhejiang Tianming Solar Technology Co. Ltd || B916

Zhejiang Trunsun Solar Co. Ltd Zhejiang Beyondsun PV Co. Ltd || B917

Zhejiang Wanxiang Solar Co. Ltd WANXIANG IMPORT & EXPORT CO LTD || B918

Zhejiang Xiongtai Photovoltaic Technology Co. Ltd || B919

ZHEJIANG YUANZHONG SOLAR CO. LTD || B920

Zhongli Talesun Solar Co. Ltd || B922

ZNSHINE PV-TECH CO. LTD || B923

Zytech Engineering Technology Co. Ltd || B924

ANNEX
II

Name of the Company || TARIC additional code

Jiangsu Aide Solar Energy Technology Co. Ltd || B798

Alternative Energy (AE) Solar Co. Ltd || B799

Anhui Chaoqun Power Co. Ltd || B800

Anhui Titan PV Co. Ltd || B803

TBEA SOLAR CO. LTD Xi’an SunOasis (Prime) Company Limited XINJIANG SANG’O SOLAR EQUIPMENT || B804

Changzhou NESL Solartech Co. Ltd || B806

Dotec Electric Co. Ltd || B928

Greenway Solar-Tech (Shanghai) Co. Ltd Greenway Solar-Tech (Huaian) Co. Ltd. || B821

GS PV Holdings Group || B823

Jiangyin Shine Science and Technology Co. Ltd || B843

King-PV Technology Co. Ltd || B848

Ningbo Best Solar Energy Technology Co. Ltd || B855

Ningbo Huashun Solar Energy Technology Co. Ltd || B856

Qingdao Jiao Yang Lamping Co. Ltd || B867

SHANGHAI SHANGHONG ENERGY TECHNOLOGY CO. LTD || B874

Shenzhen Sungold Solar Co. Ltd || B879

SUZHOU SHENGLONG PV-TECH CO. LTD || B883

Worldwide Energy and Manufacturing USA Co. Ltd || B888

Wuxi Shangpin Solar Energy Science and Technology Co. Ltd || B891

Wuxi UT Solar Technology Co. Ltd || B894

Xiamen Sona Energy Co. Ltd || B895

Zhejiang Fengsheng Electrical Co. Ltd || B903

Zhejiang Yutai Photovoltaic Material Co. Ltd || B930

Zhejiang Sunrupu New Energy Co. Ltd || B915

ANNEX
III

The following elements shall be indicated
in the Commercial Invoice accompanying the Company's sales to the European
Union of goods which are subject to the Undertaking:

1.         The heading "COMMERCIAL
INVOICE ACCOMPANYING GOODS SUBJECT TO AN UNDERTAKING".

2.         The name of the Company issuing
the Commercial Invoice.

3.         The Commercial Invoice number.

4.         The date of issue of the
Commercial Invoice.

5.         The TARIC additional code under
which the goods on the invoice are to be customs-cleared at the European Union
frontier.

6.         The exact plain language
description of the goods and:

–
the product code number (PCN),

–
technical specifications of the PCN,

–
the company product code number (CPC),

–
CN code,

–
quantity (to be given in units expressed in
Watt).

7.         The description of the terms of
the sale, including:

–
price per unit (Watt),

–
the applicable payment terms,

–
the applicable delivery terms,

–
total discounts and rebates.

8.         Name of the Company acting as an
importer to which the invoice is issued directly by the Company.

9          The name of the official of the
Company that has issued the Commercial Invoice and the following signed
declaration:

"I, the undersigned, certify that the
sale for direct export to the European Union of the goods covered by this
invoice is being made within the scope and under the terms of the Undertaking
offered by [COMPANY], and accepted by the European Commission through
Commission Decision 2013/XX/EU. I declare that the information provided on this
invoice is complete and correct."

ANNEX IV

EXPORT UNDERTAKING CERTIFICATE

The following elements shall be indicated
in the Export Undertaking Certificate to be issued by CCCME for each Commercial
Invoice accompanying the Company's sales to the European Union of goods which
are subject to the Undertaking:

1.         The name, address, fax and
telephone number of the China Chamber of Commerce for Import & Export of
Machinery & Electronic Products (CCCME).

2.         The name of the company
mentioned in the Annex of Commission Decision 2013/XX/EU issuing the Commercial
Invoice.

3.         The Commercial Invoice number.

4.         The date of issue of the
Commercial Invoice.

5.         The TARIC additional code under
which the goods on the invoice are to be customs cleared at the European Union
frontier.

6.         The exact description of the
goods, including:

·
the product code number (PCN),

·
the technical specification of the goods, the
company product code number (CPC) (if applicable),

·
CN code,

7.         The precise quantity in units
exported expressed in Watt.

8.         The number and expiry date
(three months after issuance) of the certificate.

9.         The name of the official of
CCCME that has issued the certificate and the following signed declaration:  
“I, the undersigned, certify that this certificate is given for direct exports
to the European Union of the goods covered by the Commercial Invoice
accompanying sales made subject to the undertaking and that the certificate is issued
within the scope and under the terms of the undertaking offered by [company]
and accepted by the European Commission through Commission Decision 2013/XX/EU.
I declare that the information provided in this certificate is correct and that
the quantity covered by this certificate is not exceeding the threshold of the
undertaking.

10. Date.

11. The signature and seal of CCCME.

ANNEX V

The following elements shall be indicated
in the Commercial Invoice accompanying the Company's sales to the European Union
of goods which are subject to the anti-dumping duties:

1.         The heading "COMMERCIAL
INVOICE ACCOMPANYING GOODS SUBJECT TO ANTI-DUMPING AND COUNTERVAILING
DUTIES".

2.         The name of the Company issuing
the Commercial Invoice.

3.         The Commercial Invoice number.

4.         The date of issue of the
Commercial Invoice.

5.         The TARIC additional code under
which the goods on the invoice are to be customs-cleared at the European Union
frontier.

6.         The exact plain language
description of the goods and:

–
the product code number (PCN),

–
technical specifications of the PCN,

–
the company product code number (CPC),

–
CN code,

–
quantity (to be given in units expressed in
Watt).

7.         The description of the terms of
the sale, including:

–
price per unit (Watt),

–
the applicable payment terms,

–
the applicable delivery terms,

–
total discounts and rebates.

8.         The name and signature of the
official of the Company that has issued the Commercial Invoice.’

[1]               OJ
L 343, 22.12.2009, p. 51.

[2]               OJ L 513, 5.6.2013, p. 5

[3]               OJ L 61, 5.3.2013, p.2

[4]               OJ L 209, 3.8.2013, p. 26.

[5]               Appelate Body Report, European Communities –
Measures Affecting Asbestos and Asbestos-Containting Products, WT/DS135/AB/R,
adopted 5 April 2001

[6]               Case T-401/06 Brosmann Footwear (HK) Ltd and
others vs Council; Case T-314/06 Whirlpool Europe vs Council

[7]               OJ C 269, 6.9.2012, p. 5.

[8]               Reference number CEI/IEC 61730-1:2004

[9]               Footwear with uppers of leather originating in the
People's Republic of China and Vietnam, Commission Regulation (EC) No. 553/2006
of 23 March 2006 (prov.);

Council Regulation (EC)
No. 1472/2006 of 5 October 2006 (def.).

[10]             Case T-401/06 , Brosmann Footwear (HK) Ltd. vs
Council of the European Union, para 133.

[11]             Case T-401/06 , Brosmann Footwear (HK) Ltd. vs
Council of the European Union, para 135.

[12]             Regulation (EU) 1168/2012 of the European Parliament
and of the Council of 12 December 2012, OJ L 344, 14.12.2012, p. 1.

[13]             Firstpost, 12 June 2013

[14]             JRC Scientific and Policy Report, PV Status Report
2012, p. 14

[15]             Indian Import statistics, Commodity Code 8541 40 11 Solar
Cells/Photovoltaic cells whether or not assembles in module/panel. The values
are given for the Indian business year, i.e. April-March. Information on
volumes is given in pieces, but cells and modules are reported together. Since
the value of a module is typically around 100 times larger than the value of a
cell, the information on volumes is not considered reliable.

[16]             Case C-16/90, Detlef Nölle vs Hauptzollamt
Bremen-Freihafen, ECR I-5163

[17]             See page XX
of this Official Journal

[18]             Since the period under registration is significantly
shorter than the IP, a comparison of monthly average values is more useful than
a comparison of total volumes of the two respective periods.

[19]             13 986 MW of modules + 1 019 MW of cells
allocated to 12 months

[20]             OJ L 209, 3.8.2013, p. 26.

[21]             See page XXX
of this Official Journal.

[22]             See page XX
of this Official Journal

[23]             See page XXX
of this Official Journal.