# C_2016211EN.01005801.xml

| 13.6.2016 | EN | Official Journal of the European Union | C 211/58 |
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13.6.2016

EN

Official Journal of the European Union

C 211/58

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Action brought on 11 April 2016 — Megasol Energie v Commission

(Case T-152/16)

(2016/C 211/72)

Language of the case: German

Parties

Applicant: Megasol Energie AG (Deitingen, Switzerland) (represented by: T. Wegner, lawyer)

Defendant: European Commission

Form of order sought

The applicant claims that the Court should:

| — | annul Commission Implementing Regulations (EU) 2016/185 and 2016/184 of 11 February 2016; |
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annul Commission Implementing Regulations (EU) 2016/185 and 2016/184 of 11 February 2016;

| — | in the alternative, annul Commission Implementing Regulations (EU) 2016/185 and 2016/184 of 11 February 2016 in so far as they impose antidumping and countervailing duties on solar modules exported into the EU by the applicant where the solar modules contain solar cells originally consigned in Taiwan from undertakings which are exempt from those measures; |
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in the alternative, annul Commission Implementing Regulations (EU) 2016/185 and 2016/184 of 11 February 2016 in so far as they impose antidumping and countervailing duties on solar modules exported into the EU by the applicant where the solar modules contain solar cells originally consigned in Taiwan from undertakings which are exempt from those measures;

| — | in the alternative, annul Commission Implementing Regulations (EU) 2016/185 and 2016/184 of 11 February 2016 in so far as they impose antidumping and countervailing duties on solar modules exported into the EU by the applicant where the solar modules contain solar cells originally consigned in Taiwan from various undertakings; |
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in the alternative, annul Commission Implementing Regulations (EU) 2016/185 and 2016/184 of 11 February 2016 in so far as they impose antidumping and countervailing duties on solar modules exported into the EU by the applicant where the solar modules contain solar cells originally consigned in Taiwan from various undertakings;

| — | in the further alternative, annul Commission Implementing Regulations (EU) 2016/185 and 2016/184 of 11 February 2016 in so far as they concern the applicant; |
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in the further alternative, annul Commission Implementing Regulations (EU) 2016/185 and 2016/184 of 11 February 2016 in so far as they concern the applicant;

| — | order the defendant to pay the costs. |
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order the defendant to pay the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on six pleas in law.

| 1. | No investigation of exports from Switzerland
  The applicant claims that anti-dumping duties may be extended only if the conditions laid down in Article 13 of the basic antidumping regulation (‘the Basic Regulation’) are satisfied. This meant, in particular, that an investigation of circumvention was required to be initiated and carried out effectively for the exports at issue.
  Since the applicant exports solar modules from Switzerland into the EU but, contrary to Article 13(3) of the Basic Regulation, no investigation was initiated for Switzerland, the applicant’s solar modules could not be subject to measures. |
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1.

No investigation of exports from Switzerland

The applicant claims that anti-dumping duties may be extended only if the conditions laid down in Article 13 of the basic antidumping regulation (‘the Basic Regulation’) are satisfied. This meant, in particular, that an investigation of circumvention was required to be initiated and carried out effectively for the exports at issue.

Since the applicant exports solar modules from Switzerland into the EU but, contrary to Article 13(3) of the Basic Regulation, no investigation was initiated for Switzerland, the applicant’s solar modules could not be subject to measures.

| 2. | Erroneous investigation of the facts relation to Taiwan
  Contrary to the third sentence of Article 13(1) of the Basic Regulation, the Commission investigated erroneously the facts relating to a change in the pattern of trade between China and Taiwan. In particular, the ascertained values of trade statistics showed inconsistencies. It could not be inferred from the values that there had been transhipment through Taiwan. There is also no significant change in the pattern of trade in relation to Taiwan, since the increase of exports from Taiwan was only slight. |
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2.

Erroneous investigation of the facts relation to Taiwan

Contrary to the third sentence of Article 13(1) of the Basic Regulation, the Commission investigated erroneously the facts relating to a change in the pattern of trade between China and Taiwan. In particular, the ascertained values of trade statistics showed inconsistencies. It could not be inferred from the values that there had been transhipment through Taiwan. There is also no significant change in the pattern of trade in relation to Taiwan, since the increase of exports from Taiwan was only slight.

| 3. | No investigation of the facts in relation to Switzerland
  No extended duties could be imposed on the solar modules exported by the applicant simply because no change at all has been found in the pattern of trade within the meaning of Article 13(3)(3) of the Basic Regulation as regards trade between China and Switzerland. |
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3.

No investigation of the facts in relation to Switzerland

No extended duties could be imposed on the solar modules exported by the applicant simply because no change at all has been found in the pattern of trade within the meaning of Article 13(3)(3) of the Basic Regulation as regards trade between China and Switzerland.

| 4. | No unjustified change in the pattern of trade
  Even if there was a change in the pattern of trade relating to Taiwan and Switzerland, quod non, the Commission did not, however, establish that such a change was not justified. |
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4.

No unjustified change in the pattern of trade

Even if there was a change in the pattern of trade relating to Taiwan and Switzerland, quod non, the Commission did not, however, establish that such a change was not justified.

| 5. | Error of discretion by the Commission in adopting the contested regulations, on the ground of the lack of an option of exemption for the applicant by means of an undertaking invoice
  Whereas EU undertakings were, by means of an undertaking invoice, able to import goods exempt from the measures, this was not possible for the applicant. The wording of the undertaking is not tailored to undertakings from third countries which use cells from Malaysia or Taiwan. |
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5.

Error of discretion by the Commission in adopting the contested regulations, on the ground of the lack of an option of exemption for the applicant by means of an undertaking invoice

Whereas EU undertakings were, by means of an undertaking invoice, able to import goods exempt from the measures, this was not possible for the applicant. The wording of the undertaking is not tailored to undertakings from third countries which use cells from Malaysia or Taiwan.

| 6. | Error of discretion by the Commission in adopting the contested regulations, on the ground of infringement of EU fundamental rights and of the Agreement between the European Economic Community and the Swiss Confederation (‘the EEC-Switzerland Agreement’)
  Lastly, the applicant claims that its freedom to choose an occupation and its freedom to conduct a business (Articles 15 and 16 of the Charter of Fundamental Rights of the European Union; ‘the Charter’), its right to property (Article 17 of the Charter) and the principle of equal treatment (Article 20 of the Charter) have been infringed, since it has in particular been placed at a disadvantage compared to EU undertakings. The EEC-Switzerland Agreement prohibits discrimination against undertakings from the Contracting States. |
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6.

Error of discretion by the Commission in adopting the contested regulations, on the ground of infringement of EU fundamental rights and of the Agreement between the European Economic Community and the Swiss Confederation (‘the EEC-Switzerland Agreement’)

Lastly, the applicant claims that its freedom to choose an occupation and its freedom to conduct a business (Articles 15 and 16 of the Charter of Fundamental Rights of the European Union; ‘the Charter’), its right to property (Article 17 of the Charter) and the principle of equal treatment (Article 20 of the Charter) have been infringed, since it has in particular been placed at a disadvantage compared to EU undertakings. The EEC-Switzerland Agreement prohibits discrimination against undertakings from the Contracting States.

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