Opinion of the Advocate General — ECLI:EU:C:2026:366
Date: 2026-04-30
Language of the case: Dutch

Summary  C-157/25 – 1 
Case C-157/25 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
6 February 2025 
Referring court:  
Rechtbank van eerste aanleg te Antwerpen (Belgium) 
Date of the decision to refer:  
3 January 2025 
Prosecuting parties:  
Administratie Douane & Accijnzen – Regio Antwerpen 
Openbaar Ministerie 
Defendants:  
NV Jas Forwarding Worldwide (Belgium) 
Gerlach & Co. NV 
BO Baywa R.E. Solar Systems S.A.R.L. 
BO Bejulo 
BO Memodo 
BO Densys PV5 
BO HelioActive Rendszerintegrator 
BO Donauer Solar Systems 
  
Subject matter of the main proceedings 
Criminal proceedings in which the defendants are accused of evading anti-
dumping and countervailing duties on the import of solar panels by incorrectly 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-157/25 
 
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stating the country of origin and the country of shipment, using the wrong 
commodity code and failing to submit the required commercial documents.  
Subject matter of the request for a preliminary ruling 
Interpretation of the phrase ‘consigned from Malaysia and Taiwan’ as referred to 
in Implementing Regulations 2016/184, 2016/185, 2017/366 and 2017/367, in the 
light of, among other things, Article 60(2) of Regulation No 952/2013 (Customs 
Code) and the opinion of the European Commission’s Legal Service of 10 April 
2019 (DCM(2019)10202), and the question of the point up to which importers can 
still invoke the exemptions provided for. 
Questions referred for a preliminary ruling 
1. Should photovoltaic modules or panels of crystalline silicon which were 
assembled in South Korea or Vietnam with photovoltaic cells produced in 
Malaysia or Taiwan and subsequently imported into the European Union from 
South Korea or Vietnam be regarded as having been ‘consigned from Malaysia or 
Taiwan’ for the purposes of Implementing Regulations 2016/184, 2016/185, 
2017/366 and 2017/367, whereby the photovoltaic modules or panels of 
crystalline silicon must be declared as having Malaysia or Taiwan as the ‘country 
of consignment’ and with the relevant commodity codes for photovoltaic modules 
or panels of crystalline silicon ‘imported from Malaysia or Taiwan’? 
2. If question 1 is answered in the affirmative, must Article 1(2) of 
Implementing Regulations 2016/184 and 2016/185 and Article 4(2) of 
Implementing Regulations 2017/366 and 2017/367 then be interpreted as meaning 
that the exemptions granted to the aforementioned undertakings can still be 
applied if the valid commercial invoices with a declaration for the photovoltaic 
cells were submitted to customs only after the photovoltaic modules had been 
cleared? 
3. If question 1 is answered in the affirmative, must the declaration on the valid 
commercial invoice then include the exact wording and (form) requirements of 
Article 4(2) of Implementing Regulations 2017/366 and 2017/367 and of 
Article 1(2) of Implementing Regulations 2016/184 and 2016/185 or can there be 
a deviation from those wording and (form) requirements, whether or not supported 
by other evidence which substantiates the accuracy and authenticity of the invoice 
declaration? 
Provisions of European Union law relied on 
Regulation No 952/2013 laying down the Union Customs Code: Article 60(2) 
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Implementing Regulations (EU) 2016/184 and 2016/185 extending the definitive 
countervailing duty imposed by Implementing Regulations (EU) No 1239/2013 
and 1238/2013 on imports of crystalline silicon photovoltaic modules and key 
components (i.e. cells) originating in or consigned from the People’s Republic of 
China to imports of crystalline silicon photovoltaic modules and key components 
(i.e. cells) consigned from Malaysia and Taiwan, whether declared as originating 
in Malaysia and in Taiwan or not  
Implementing Regulations (EU) 2017/366 and 2017/367 imposing a definitive 
anti-dumping duty on imports of crystalline silicon photovoltaic modules and key 
components (i.e. cells) originating in or consigned from the People’s Republic of 
China, as amended by Implementing Regulation (EU) 2017/1570 
Delegated Regulation (EU) 2015/2446 supplementing Regulation (EU) 
No 952/2013: Annex D, Chapter 2, Title 2, 5/14 
Implementing Regulation (EU) 2015/2447 laying down detailed rules for 
implementing certain provisions of Regulation (EU) No 952/2013: Articles 141-
144  
Delegated Regulation (EU) 2016/341 supplementing Regulation (EU) 
No 952/2013: Articles 14-21, Annex 9, Appendices B1 and D1, box 15 
Implementing Decision 2013/707/EU confirming the acceptance of an 
undertaking offered in connection with the anti-dumping and anti-subsidy 
proceedings concerning imports of crystalline silicon photovoltaic modules and 
key components (i.e. cells) originating in or consigned from the People’s Republic 
of China for the period of application of definitive measures 
Opinion of the Commission’s Legal Service of 10 April 2019 (DCM(2019)10202) 
for the attention of OLAF 
European Union case-law 
Judgment of 20 May 2021, Renesola UK Ltd (C-209/20, EU:C:2021:400) 
Judgment of 22 May 2019, Krohn & Schröder (C-226/18, EU:C:2019:440) 
Judgment of 15 October 2020, Jebsen & Jessen (C-543/19, EU:C:2020:830) 
Provisions of national law relied on 
Algemene Wet inzake Douane en Accijnzen (General Law on customs and excise 
duties, the AWDA) of 18 July 1977: Articles 138 and 139, which at the time of 
the declarations stipulated that the declarants were obliged to specify the correct 
country of origin, consignment and the correct commodity code. The provisions 
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have now been withdrawn because these obligations are now governed by 
Delegated Regulation 2016/341. 
Article 202 criminalising the failure to pay (in full) the levies and excise duties 
owed 
Articles 281 and 283 concerning the authority of the court to assess both the 
criminal and fiscal claims arising from customs offences  
Succinct presentation of the facts and procedure in the main proceedings 
1 Between 1 November 2016 and 4 September 2018, a total of 481 import 
declarations for solar panels were submitted on behalf of the defendants. These 
panels were composed of solar cells that were supposedly produced in Malaysia or 
Taiwan and transported from there to South Korea or Vietnam to be finished into 
solar panels. They were then transported from South Korea or Vietnam to the 
European Union. 
2 The solar panels were often declared as being either of South Korean or 
Vietnamese origin and consigned from South Korea or Vietnam, or of Malaysian 
or Taiwanese origin but consigned from South Korea or Vietnam. 
3 The defendants did not use commodity codes for solar panels imported from 
Malaysia or Taiwan. Furthermore, not all the solar panels were accompanied by a 
commercial invoice containing an invoice declaration within the meaning of 
Implementing Regulations 2016/184, 2016/185, 2017/366 and 2017/367. 
4 The defendants are being prosecuted before the referring court for evading anti-
dumping duties totalling EUR 17 million and countervailing duties totalling 
EUR 3.66 million in connection with the import of solar panels from Taiwan and 
Malaysia, by, among other things, incorrectly stating the country of origin as 
South Korea or Vietnam, incorrectly stating the country of consignment as South 
Korea or Vietnam, using an incorrect commodity code and not submitting the 
required commercial documents. In addition to a limited fine under Article 261 of 
the AWDA, they may be punished under Article 202 of the AWDA with a fine of 
five to ten times the evaded taxes. 
The essential arguments of the parties in the main proceedings 
5 The Algemene Administratie van de Douane en Accijnzen (General 
Administration of Customs and Excise) is of the opinion that the defendants used 
incorrect commodity codes and that the panels should have been declared as 
originating from and consigned from Malaysia or Taiwan. 
6 The defendants claim that they can demonstrate that the solar panels were 
produced with solar cells from producers in Malaysia or Taiwan that are exempt 
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from anti-dumping duties under Regulations 2016/184, 2016/185, 2017/366 and 
2017/367. 
Succinct presentation of the reasoning in the request for a preliminary ruling 
7 The referring court must assess whether the solar panels were correctly declared 
and whether anti-dumping and countervailing duties were evaded by possibly 
incorrectly declaring the goods, or whether the importers can still invoke the 
exemptions under Implementing Regulations 2016/184, 2016/185, 2017/366 and 
2017/367.  
8 In the aforementioned implementing regulations, the anti-dumping and 
countervailing duties imposed on solar panels originating from China have been 
extended to solar panels consigned from Malaysia and Taiwan, whether declared 
as originating from Malaysia and Taiwan or not. The regulations also contain a list 
of producers who are exempt from these duties. Exemptions are only granted 
when commercial documents are submitted that show whether the solar cells 
come from exempted producers from Malaysia or Taiwan. The implementing 
regulations further stipulate that if such an invoice is not presented and/or one or 
both of the TARIC additional codes are missing from the declaration, the duty that 
applies to ‘all other companies’ will be applied.  
9 The referring court substantiates its first question as follows. 
10 Article 60(2) of Regulation No 952/2013 the new Customs Code states that if 
more than one country or territory is involved in the manufacture of goods, these 
shall be deemed to originate in the country or territory where they underwent their 
last, substantial, economically justified processing or working, in an undertaking 
equipped for that purpose, resulting in the manufacture of a new product or 
representing an important stage of manufacture. 
11 Solar panels and solar cells both fall under HS heading 8541. According to 
Delegated Regulation 2015/2446, the origin of solar cells is determined by the 
country where the production process resulted in a change of heading. Where the 
country of origin cannot be determined by application of the primary rules, the 
country of origin of the goods shall be the country in which the major portion of 
the materials originated, as determined on the basis of the value of the materials. 
Since the conversion of solar cells into solar panels does not involve a change in 
tariff heading and the solar cells are the most valuable part of the solar panels, 
solar panels retain the origin of the solar cells used in them.  
12 In the judgment in Renesola UK Ltd, the Court of Justice also ruled that the 
processing of silicon wafers into solar cells in the production process of solar 
panels must be considered the last substantial transformation within the meaning 
of [now] Article 60 of Regulation No 952/2013. According to the referring court, 
this means in this case that the solar panels were correctly labelled as ‘originating 
from Malaysia or Taiwan’. 
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13 However, the question is whether the solar panels also had to be declared as 
having been ‘consigned from Malaysia or Taiwan’ by stating the relevant country 
code, and under the commodity codes for solar panels ‘imported from Malaysia or 
Taiwan’. 
14 In Implementing Regulations 2016/184, 2016/185, 2017/366 and 2017/367, a 
clear distinction is made between country of origin and country of consignment, 
and it is emphasised that the extension of the anti-dumping and countervailing 
duties applies to products consigned from Malaysia and Taiwan, regardless of 
whether they are declared as originating from Malaysia and Taiwan. 
15 According to the judgement in Krohn & Schröder (paragraph 33), all customs 
legislation applies to anti-dumping duties or countervailing duties if that is 
stipulated in the relevant regulations. That is the case for Implementing 
Regulations 2016/184, 2016/185, 2017/366 and 2017/367. 
16 Therefore, the ‘box 15: Country of consignment/export’ mentioned in Appendix 
C1 of Annex 9 to Delegated Regulation 2016/341 can be taken into account. 
According to that provision, the last intermediate country must be indicated in that 
box if a commercial transaction or a delay not related to the transport of goods has 
taken place there. The sale of the solar cells and the production of solar panels 
from these solar cells appears to have the effect, in accordance with this provision, 
that the ‘country of consignment’ is no longer Malaysia or Taiwan, but South 
Korea or Vietnam, as a result of (1) the commercial transaction and (2) a delay not 
related to the transport.  
17 However, according to the opinion of the Commission’s Legal Service of 10 April 
2019 (DCM(2019)10202) for the attention of OLAF, the phrase ‘consigned from’ 
in Implementing Regulations 2016/184 and 2016/185 should be interpreted 
broadly. Thus, indirect shipments of solar cells from Malaysia or Taiwan that are 
assembled into solar panels in third countries must also fall under Implementing 
Regulations 2016/184 and 2016/185, and must be declared as having been 
‘consigned from Malaysia or Taiwan’. 
18 The interpretation in the opinion seems to deviate from that in Delegated 
Regulation 2016/341, and seems difficult to reconcile with the exemption scheme 
in Implementing Regulations 2016/184, 2016/185, 2017/366 and 2017/367. To be 
exempt from duties in the case of solar panels, the declaration must include two 
TARIC codes, namely both the TARIC code of the solar panel producer and the 
TARIC code of the solar cell producer. If one (or both) of the TARIC additional 
codes are missing, the duty that applies to ‘all other companies’ will be applied. 
Obviously, the TARIC code of the solar panel producer cannot be specified if only 
the solar cells were produced in Taiwan or Malaysia. 
19 The referring court substantiates its second question as follows. 
20 If the solar panels are to be considered as ‘consigned from Malaysia or Taiwan’ in 
accordance with the opinion of the Commission, the question is whether the 
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importers can still submit invoice declarations pursuant to Article 1 of 
Implementing Regulations 2016/184 and 2016/185 and Article 4 of Implementing 
Regulations 2017/366 and 2017/367. 
21 According to the judgement in Tigers, which related to Implementing Regulation 
(EU) No 412/2013, importers could still submit a commercial invoice after the 
customs declaration to request individual anti-dumping duties. However, in a later 
judgment, that of 15 October 2020, Jebsen & Jessen, the Court ruled, with regard 
to Implementing Regulation 2015/82, that an undertaking invoice with the 
necessary information for exemption from anti-dumping duties could not be 
submitted within the framework of the procedure for the reimbursement of anti-
dumping duties established in Article 236 of Regulation No 952/2013. 
22 Implementing Regulation 2015/82 contains a specific rule stipulating that the 
goods must be accompanied by an undertaking invoice. That same rule is not 
included in Implementing Regulations 2016/184 and 2016/185. Implementing 
Regulations 2017/366 and 2017/367 do contain a similar provision in Article 2(1), 
but that article seems only to relate to the exemptions for Chinese producers, 
given the TARIC codes cited and the reference to the list in Implementing 
Regulation 2013/707. That article therefore seems to be separate from the 
exemption scheme in Article 4 of those regulations. On the other hand, 
Implementing Regulation 412/2013, to which the judgement in Tigers related, 
only states that invoices must be submitted, and not that a signed declaration must 
be included, which is stipulated in Implementing Regulations 2016/184, 2016/185, 
2017/366 and 2017/367.  
23 The referring court substantiates its third question as follows. 
24 A number of the invoice declarations that were submitted by the importers did not 
fully comply with the conditions of the regulations. For example, the TARIC 
additional code, the exported volume or a signature were missing. 
25 The referring court wonders whether all aspects of the invoice declaration are 
essential to its validity, and whether importers may submit evidence to 
demonstrate that the declarations are correct. 
26 The implementing regulations themselves state that if ‘no such invoice’ is 
presented and/or one or both of the TARIC additional codes are missing from the 
aforementioned declaration, the duty that applies to ‘all other companies’ will be 
applied. The TARIC codes therefore appear to be essential, and the question is 
whether other form requirements such as stating the volume, the signature, a 
specific declaration of accuracy and completeness and the name of the signatory 
are also essential.