JUDGMENT OF THE GENERAL COURT (Second Chamber)
20 November 2024 (*)
( Dumping – Subsidies – Imports of crystalline silicon photovoltaic modules and cells originating in or consigned from China – Definitive anti-dumping and countervailing duties – Undertaking – Invalidation of undertaking invoices – Legal basis – Article 8(9) of Regulation (EU) 2016/1036 – Article 13(9) of Regulation (EU) 2016/1037 – Related company – First independent customer – Article 3(1)(a) of Implementing Regulation (EU) No 1238/2013 – Article 2(1)(a) of Implementing Regulation (EU) No 1239/2013 – Implementing Regulations (EU) 2017/367 and 2017/366 )
In Case T‑733/19,
Zhejiang Sunflower Light Energy Science & Technology Ltd, established in Shaoxing (China),
Sunowe Solar GmbH, established in Nuremberg (Germany),
represented by Y. Melin and I. Fressynet, lawyers, and D. Arnold, Solicitor,
applicants,
v
European Commission, represented by T. Maxian Rusche and R. Pethke, acting as Agents,
defendant,
supported by
Council of the European Union, represented by H. Marcos Fraile and B. Driessen, acting as Agents, and by N. Tuominen, lawyer,
intervener,
THE GENERAL COURT (Second Chamber),
composed of A. Marcoulli, President, J. Schwarcz (Rapporteur) and W. Valasidis, Judges,
Registrar: V. Di Bucci,
having regard to the written part of the procedure,
having regard to the fact that no request for a hearing was submitted by the parties within three weeks after service of notification of the close of the written part of the procedure, and having decided to rule on the action without an oral part of the procedure, pursuant to Article 106(3) of the Rules of Procedure of the General Court,
gives the following
Judgment
1        By their action based on Article 263 TFEU, the applicants, Zhejiang Sunflower Light Energy Science & Technology Ltd and Sunowe Solar GmbH, seek the annulment of Commission Implementing Regulation (EU) 2019/1329 of 6 August 2019 invalidating invoices issued by Zhejiang Sunflower Light Energy Science & Technology Ltd in breach of the undertaking repealed by Implementing Regulation (EU) 2017/1570 (OJ 2019 L 207, p. 12; ‘the contested regulation’).
Background to the dispute
2        The first applicant, Zhejiang Sunflower Light Energy Science & Technology, manufactures crystalline silicon photovoltaic modules in the People’s Republic of China that it exports to the European Union. The second applicant, Sunowe Solar, imports solar modules manufactured by the first applicant into the European Union. The applicants state that they belong to the Sunflower (Luxembourg) Light Energy Science & Technology Co. Ltd group (‘the Sunflower group’).
3        On 4 June 2013, the European Commission adopted Regulation (EU) No 513/2013 imposing a provisional anti-dumping duty on imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the People’s Republic of China and amending Regulation (EU) No 182/2013 making these imports originating in or consigned from the People’s Republic of China subject to registration (OJ 2013 L 152, p. 5).
4        On 2 August 2013, the Commission adopted Decision 2013/423/EU accepting an undertaking offered in connection with the anti-dumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the People’s Republic of China (OJ 2013 L 209, p. 26). The price undertaking (‘the undertaking’) was offered by the China Chamber of Commerce for Import and Export of Machinery and Electronic Products (‘the CCCME’) on behalf of the first applicant and a number of other Chinese exporting producers.
5        On 2 December 2013, the Council of the European Union adopted Implementing Regulation (EU) No 1238/2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China (OJ 2013 L 325, p. 1).
6        On the same day, the Council also adopted Implementing Regulation (EU) No 1239/2013 imposing a definitive countervailing duty on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China (OJ 2013 L 325, p. 66).
7        Article 3(2) of Implementing Regulation No 1238/2013 and Article 2(2) of Implementing Regulation No 1239/2013 provide, in the same terms, that the Commission may identify transactions for which ‘a customs debt shall be incurred at the time of acceptance of the declaration for release into free circulation’ in cases where the acceptance of the undertaking is withdrawn.
8        On 4 December 2013, the Commission adopted Implementing Decision 2013/707/EU confirming the acceptance of an undertaking offered in connection with the anti-dumping and anti-subsidy proceedings concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China for the period of application of definitive measures (OJ 2013 L 325, p. 214).
9        On 10 September 2014, the undertaking was amended by Commission Implementing Decision 2014/657/EU accepting a proposal made by a group of exporting producers together with the [CCCME] for clarifications concerning the implementation of the undertaking referred to in Implementing Decision 2013/707 (OJ 2014 L 270, p. 6).
10      The anti-dumping duties were extended by Commission Implementing Regulation (EU) 2017/367 of 1 March 2017 imposing a definitive anti-dumping duty on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China following an expiry review pursuant to Article 11(2) of Regulation (EU) 2016/1036 of the European Parliament and of the Council and terminating the partial interim review investigation pursuant to Article 11(3) of Regulation (EU) 2016/1036 (OJ 2017 L 56, p. 131; ‘the expiry review anti-dumping regulation’).
11      The countervailing duties were extended by Commission Implementing Regulation (EU) 2017/366 of 1 March 2017 imposing definitive countervailing duties on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China following an expiry review pursuant to Article 18(2) of Regulation (EU) 2016/1037 of the European Parliament and of the Council and terminating the partial interim review investigation pursuant to Article 19(3) of Regulation (EU) 2016/1037 (OJ 2017 L 56, p. 1; ‘the expiry review anti-subsidy regulation’).
12      The total ad valorem duty applicable to imports of photovoltaic cells and modules originating in China for non-sampled cooperating companies – such as the first applicant – listed in Annex I to Implementing Regulation No 1238/2013 and in Annex 1 to Implementing Regulation No 1239/2013 is 47.7%. It corresponds to an anti-dumping duty of 41.3% (Article 1(2) of Implementing Regulation No 1238/2013, replaced by Article 1(2) of the expiry review anti-dumping regulation), plus a countervailing duty of 6.4% (Article 1(2) of Implementing Regulation No 1239/2013, replaced by Article 1(2) of the expiry review anti-subsidy regulation).
13      Provisions equivalent to those referred to in paragraph 7 above were laid down, following the expiry review investigations, in the expiry review anti-dumping and anti-subsidy regulations.
14      In 2017, the undertaking was replaced by an obligation to pay a duty which amounted to the difference between the variable minimum import price and the net free-at-Union-frontier price, before duty, if the latter was lower than the former, and which, in any event, was to be no higher than 41.3% for the anti-dumping duty and 6.4% for the countervailing duty (Article 1(1) and Article 3(1) of Commission Implementing Regulation (EU) 2017/1570 of 15 September 2017 amending Implementing Regulation 2017/366 and Implementing Regulation 2017/367 imposing definitive countervailing and anti-dumping duties on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China and repealing Implementing Decision 2013/707 (OJ 2017 L 238, p. 22; ‘the repeal regulation’)). The repeal regulation entered into force on 1 October 2017.
15      By letter of 2 April 2019, the Commission informed the applicants that it was proposing to invalidate the invoices issued in breach of the undertaking by the first applicant, and disclosed the essential facts and considerations forming the basis of that proposal. A general disclosure document was annexed to that letter. That document was supplemented by an additional specific disclosure document made available to the applicants on 30 April 2019.
16      In the general disclosure document, the Commission stated that the first applicant had infringed several commitments made in the undertaking and that, on that basis, it proposed (i) to invalidate all of the undertaking invoices which accompanied the sales made to the second applicant, and (ii) to instruct the customs authorities to recover the customs debt that would have been incurred had the applicants failed to present valid undertaking invoices when the declaration for release of the goods for free circulation was accepted. The Commission also accused the first applicant of having committed fraud, including ‘fraudulent undervaluation’.
17      By email of 10 May 2019, the applicants submitted comments.
18      The Commission confirmed its findings in the contested regulation, Article 1 of which is worded as follows:
‘1.      The undertaking invoices listed in the Annex are declared invalid.
2.      The anti-dumping and countervailing duties due at the time of acceptance of the customs declaration for release into free circulation under Article 3(2)(b) of Implementing Regulation … No 1238/2013, Article 2(2)(b) of [the expiry review anti-dumping regulation], Article 2(2)(b) of Implementing Regulation … No 1239/2013 and Article 2(2)(b) of [the expiry review anti-subsidy regulation] shall be collected.’
Forms of order sought
19      In their form of order as it now stands, the applicants claim that the Court should:
–        annul the contested regulation;
–        order the Commission and the Council to pay the costs.
20      The Commission, supported by the Council, contends that the Court should:
–        dismiss the action as unfounded;
–        order the applicants to pay the costs.
Law
21      In support of their action, the applicants raise two pleas in law. The first plea alleges that the Commission acted illegally by declaring the invoices at issue invalid (see paragraph 18 above) and ordering that duties be collected on them, even though the powers that it relied upon to do so had either expired or been revoked. The second plea alleges that those duties could not be levied on solar panels (i) which were sold to a party related to the applicants and used by that party in a solar photovoltaic farm owned by it, (ii) which were sold to a party related to the applicants before 30 September 2014 and used by that party in a solar photovoltaic farm owned by it, or (iii) which were never re-sold to an independent customer, but kept in stock.
The first plea, relating to the Commission’s competence to adopt the contested regulation
22      The applicants submit that, according to Article 1 of the contested regulation, the Commission intended to declare the invoices at issue invalid and to collect the duties due at the time of acceptance of the undertaking ‘under the powers’ contained in Article 3(2)(b) of Implementing Regulation No 1238/2013, Article 2(2)(b) of the expiry review anti-dumping regulation, Article 2(2)(b) of Implementing Regulation No 1239/2013 and Article 2(2)(b) of the expiry review anti-subsidy regulation. However, the two implementing regulations of 2013 expired, in their view, on 7 December 2015, under Article 5 thereof, and those of 2017 on 3 September 2018, under Article 6 thereof.
23      Furthermore, even before the expiry of those implementing regulations of 2017, the provisions in question were repealed by Article 1(4) and Article 3(3) of the repeal regulation. Consequently, in order to invalidate the undertaking and order the collection of duties, the Commission relied illegally, in the contested regulation, on powers which no longer existed and, in so doing, acted without a legal basis and therefore ultra vires.
24      The Commission, supported by the Council, disputes the applicants’ claims.
25      It should be noted that, as is apparent from paragraph 118 of the judgment of 16 March 2023, Commission v Jiangsu Seraphim Solar System and Council v Jiangsu Seraphim Solar System and Commission (C‑439/20 P and C‑441/20 P, EU:C:2023:211), the power of the EU institutions entrusted with the implementation of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21; ‘the basic anti-dumping regulation’) and of Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (OJ 2016 L 176, p. 55; ‘the basic anti-subsidy regulation’) to require payment, following the withdrawal of acceptance of an undertaking, of the duties due in respect of the transactions covered by the invalidated undertaking invoices, as provided for, in the present case, in Article 1(2) of the contested regulation, may legitimately be based on Article 8(9) of the basic anti-dumping regulation and Article 13(9) of the basic anti-subsidy regulation. In accordance with paragraph 119 of the judgment referred to above, the same conclusion must moreover be drawn to the extent that Article 1(1) of the contested regulation provides for the invalidation of those undertaking invoices.
26      In the present case, the Commission referred, in recital 30 of the contested regulation, to the provisions cited in paragraph 25 above, stating that it was on that basis that it had informed the applicants of its intention to invalidate the undertaking invoices, giving them the opportunity to be heard and to comment. Similarly, as is apparent from recital 20 of that regulation, those provisions constituted, together with Article 14(7) of the basic anti-dumping regulation and Article 24(7) of the basic anti-subsidy regulation, the basis on which the customs authorities of a Member State submitted to the Commission evidence regarding the breach of the undertakings by the first applicant. It is also in that sense that recitals 39 and 57 of the contested regulation must be understood. Lastly, recital 58 of the contested regulation refers to the definitive anti-dumping and countervailing duties imposed in accordance with Article 9(4) of the basic anti-dumping regulation and Article 14(4) of the basic anti-subsidy regulation.
27      In those circumstances, contrary to what the applicants maintain, Article 1 of the contested regulation cannot be interpreted as meaning that the Commission intended to declare the undertaking invoices at issue invalid and to collect the anti-dumping and countervailing duties due at the time of acceptance of the customs declaration for release into free circulation ‘under the powers contained’ in the provisions referred to in paragraph 22 above, which, in essence, refer to the provisions of Article 8(9) of the basic anti-dumping regulation and of Article 13(9) of the basic anti-subsidy regulation or to the corresponding provisions in the previous basic anti-dumping and anti-subsidy regulations, namely Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51) and Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Community (OJ 2009 L 188, p. 93). Thus, the provisions referred to in paragraph 22 above merely provide for the establishment of a system for the issuance of undertaking invoices, without, however, conferring powers in the sense referred to by the applicants.
28      In the light of the foregoing, the applicants’ claims that the Commission relied on powers that had expired or that had been revoked must be rejected as unfounded.
29      Consequently, the first plea must be rejected.
The second plea, alleging an erroneous delimitation of the goods to which the anti-dumping and countervailing duties in question could apply
30      The applicants submit that the anti-dumping and countervailing duties could not be levied on solar panels which were sold to a party related to the applicants and used by that party in a solar photovoltaic farm owned by it, or were sold before 30 September 2014 to a party related to the applicants and used by that party in a solar photovoltaic farm owned by it (‘the first type of transactions’), or which were never re-sold to an independent customer, but kept in stock until the expiry of the anti-dumping and countervailing duties (‘the second type of transactions’).
31      In the first place, in the first type of transactions, the solar modules produced and exported by the first applicant were installed in a solar park in Italy. That solar park is owned by A, in which the Sunflower group, to which the applicants state that they belong, holds 50% of the shares. The solar modules imported into the European Union under certain undertaking invoices invalidated by the Commission were eventually sold to an affiliate B of the project developer, also established in Italy. As is apparent from an Excel sheet provided to the Commission in the course of the administrative investigation, some of the solar modules in question were sold to that company by the second applicant, which had previously purchased them from the first applicant. Other solar modules were sold to it directly by the first applicant.
32      The applicants maintain that nothing in the undertakings governs the price applicable to imports of solar modules that are not re-sold to an independent customer, but are instead used in a solar park owned by a company related to the applicants. Indeed, the undertaking only governs the price charged to the first independent customer. The minimum import price applicable to a re-sale in the European Union by a company related to the applicants to the first independent customer is the minimum import price applicable at the time of that re-sale, not the minimum import price applicable when the importer related to the second applicant imported the solar module.
33      The applicants dispute the validity of the explanations given by the Commission to the CCCME in the letter of 30 September 2014 that sales of the goods in question for the construction of solar parks by companies related to the applicants constituted a breach of the undertaking. First, those explanations are in no way binding, since they are not contained in a regulation, a decision or even a formal undertaking. Secondly, and in any event, they could only affect invoices issued after 30 September 2014.
34      In the second place, as regards the second type of transactions, they concern imports of solar modules by the second applicant that were never re-sold, but which remained in stock, some until the end of the undertaking in September 2017, others until the expiry of the anti-dumping and countervailing measures in question in September 2018. Lastly, according to the applicants, some solar modules were still in stock on the date on which the application was drawn up.
35      The applicants maintain that there was nothing in the undertaking that prohibited the storage of the goods. Storage was never precluded as a breach of the monitoring obligation or of any other obligation in the undertaking. Nor would it be fair to assume that solely because kickbacks and other payments allegedly took place for certain invoices that the Commission was entitled to invalidate all invoices, including those that related to goods that were put into storage or that were never re-sold to an independent customer. Such an interpretation would be disproportionate and would relieve the customs authorities of the responsibility to investigate each invoice.
36      The Commission, supported by the Council, disputes the applicants’ claims.
37      As a preliminary point, it should be noted that, as the Commission submits, the applicants have not disputed, overall, the existence of a system aimed at circumventing their commitments made in the undertaking, as described in recitals 22 to 27 of the contested regulation, but have merely made claims concerning certain specific transactions. The applicants have also maintained that it was not correct to assume that solely because kickbacks and payments allegedly took place for certain invoices, the Commission was entitled to invalidate all invoices.
38      In the first place, as regards the first type of transactions at issue, the question arises as to what treatment is to be given, in the context of the undertakings, to the solar modules produced and exported by the first applicant that are installed in a solar park belonging to A, in which the Sunflower group holds 50% of the shares. As the applicants state, the solar modules imported into the European Union under certain undertaking invoices invalidated by the Commission were eventually sold to B, also in Italy. Some of the solar modules in question were sold to that company directly by the first applicant, others by the second applicant, which had previously purchased them from the first applicant.
39      In that regard, first, it is common ground, as is also apparent from recitals 43 and 44 of the contested regulation, that the goods in question entered the European Union, that they were cleared for free circulation under undertaking invoices and that they were exempted from the anti-dumping and countervailing duties. Therefore, the transactions at issue had to comply with the undertakings.
40      Secondly, as is apparent from recital 12 of the contested regulation, the Commission informed the CCCME in the letter of 30 September 2014 that re-sales of solar modules for the construction of solar parks by a party related to the applicants constituted a breach of the undertakings. That information was forwarded by the CCCME to the exporting producers that were party to the undertakings.
41      In that regard, as the Commission submits, it is apparent, in essence, from clause 5.18 of the undertaking that it was for the applicants to ensure that all of their related companies whose business activity is other than the production or sale of crystalline silicon photovoltaic modules and their key components will not enter into business related to those goods. In addition, it is stated in clause 5.18 of the undertaking that the applicants, as parties to the undertaking, were to make available to the Commission, upon its request, all the information necessary for the monitoring of the undertakings. Thus, contrary to what the applicants claim, the undertaking governs imports to related companies. As regards the letter of 30 September 2014, it merely recalled and explained the undertaking, in accordance with clause 5.12 thereof.
42      Thirdly, the applicants replied to the written questions put by the General Court by way of measures of organisation of procedure, claiming, in essence, that A and B were not companies related to them, and they also confirmed that those two companies were not included in the undertaking.
43      In particular, first, as regards A, the applicants described it as a company responsible for the construction of two solar parks in Italy, to which they supplied the goods in question, namely photovoltaic modules. The applicants stated that those goods had first been delivered to B, in order subsequently to be supplied to A. Since that latter company was unable to make payment on the date of delivery of the goods in question, 50% of its shares were transferred to the Sunflower group, the holding company for several solar parks, for the purpose of securing the purchase price and future payment following the re-sale of the solar parks to an investor. According to the applicants, since the part of the solar parks containing the goods in question was ‘destroyed by a landslide’, with the result that it was never re-sold to investors, the remaining 50% of the shares in A were transferred to the Sunflower group in 2019.
44      Secondly, as regards B, the applicants state that it was an independent Italian company that had ‘no corporate relationships’ with them. The applicants confirmed that that company had purchased the goods in question from them.
45      In its replies to the questions put by the General Court by way of measures of organisation of procedure, the Commission maintained, to that same effect, in essence, with reference to recital 26 of the contested regulation, that the solar parks in Italy were constructed by A and B, those companies having purchased the solar modules in part from the second applicant and in part from the first applicant. The Commission highlighted the fact that the sales of the first applicant concerned the invoices listed in Annex A.12, at page 960, as ‘SUNOWE14307-RE’, ‘SUNOWE14308-RE’ and ‘SUNOWE14309-RE’. The Commission also made reference to Annex A.17, at page 1036, and to documents referring to the statements of one of the witnesses (a member of the management board of the applicants) in the context of a German criminal investigation, which documents were sent to the Commission during the administrative procedure by the German customs authorities (see, in particular, pages 777 and 778 of Annex A.10 to the application, and pages 872 and 873 of Annex A.11 to the application). It is apparent, in essence, from those witness statements that the sales in question, in Sicily (Italy), presented risks of (or constituted an indication of) circumvention of the minimum price for imports of the goods in question into the European Union. Although the witness maintains that he did not have the definitive confirmatory documents in that regard, he nevertheless describes the fraudulent scheme in question.
46      The Commission also stated, in paragraphs 9 to 14 of its reply to the questions put by the General Court by way of measures of organisation of procedure, in essence, that A and B were related to the applicants, within the meaning of Article 143(1)(e) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1). According to the Commission, this is, moreover, expressly acknowledged by the applicants in paragraph 94 of the application, as regards A, in the light of the reference made to Annex A.16 to the application, stating that the Sunflower group, to which the applicants belonged, held 50% of the shares in that company.
47      The Commission also states that it was apparent from the evidence that C had been appointed as a sole representative of A and B, as mentioned by the witness in the context of the German criminal investigation, referred to in paragraph 45 above (see Annex A.10 to the application, page 778, and Annex A.11 to the application, page 872). Accordingly, those companies were, the Commission maintains, related to the applicants.
48      As a preliminary point, it should be noted that the applicants’ position – put forward in their reply to the measures of organisation of procedure – that A and B were unrelated to them, contradicts their claim set out in paragraph 94 of the application, which refers, in the context of the construction of the solar park in Italy, to a company related to the applicants and to an affiliate of the project developer. Moreover, all of the evidence referred to above that was put forward by the Commission does indeed show that A and B were related to the applicants. In particular, the sworn witness statement referred to in paragraph 45 above provides details concerning the events as they took place at the relevant time, as regards the transactions related to the sale of the goods in question in Sicily, which show concerted action between the applicants and the companies concerned in Sicily, presenting risks of (or constituting an indication of) circumvention of the minimum price for imports of the goods in question into the European Union (see also paragraph 47 above, referring to the fact that C had been appointed as a sole representative of A and B). In those circumstances, in the light of a combined reading of Article 143 of Regulation No 2454/93, Article 3(1)(a) of Implementing Regulation No 1238/2013 and Article 2(1)(a) of Implementing Regulation No 1239/2013, as well as Article 2(1)(a) of the expiry review anti-dumping regulation and Article 2(1)(a) of the expiry review anti-subsidy regulation, B could not be regarded as the applicants’ ‘first independent customer’, acting as an importer in the European Union.
49      In accordance with the express provisions of the undertaking, the definition of ‘related party in the [European] Union’ required that such a party be listed in Annex XI to the undertaking, which was precisely not the case here. Furthermore, it is apparent from clauses 6.2 and 6.3 of the undertaking that it was for the applicants to notify the Commission of their intention to add a new related party to those of which they had already notified it on the date of adoption of the undertaking.
50      Moreover, it is apparent from clause 5.18 of the undertaking that related companies not included in the undertaking are not to engage in activities related to the goods concerned. Similarly, the applicants have not stated that they consulted the Commission regarding their intention to sell the goods in question to related companies in the European Union that were not included in Annex XI to the undertaking. Accordingly, the sales in question were also not ‘direct sales’ corresponding to the provisions referred to in paragraph 48 above.
51      In those circumstances, since clause 5.18 of the undertaking applies to the situation of A and B, which are regarded as being related to the applicants (see paragraphs 41, 46, 48 and 50 above), it is also not possible to take the view, as the applicants suggest, that it is only the invoices relating to the transactions after 30 September 2014 that could be invalidated on that basis. In addition, as is apparent from the witness statements in the context of a German criminal investigation (see paragraph 45 above), and as described in recitals 25, 43 and 48 of the contested regulation, a fraudulent scheme involving both A and B was envisaged, which, in the context of all of the elements described in that regard in the contested regulation, constituted an indication that the Commission could reasonably take into account. Consequently, the applicants’ claims relating to the sales to A and B must be rejected as unfounded.
52      In the second place, as regards the second type of transactions at issue, as a preliminary point, the Commission is correct to submit that those imports were accompanied by undertaking invoices and that the photovoltaic modules were cleared for free circulation without the need to pay the anti-dumping and countervailing duties on the basis of the conditions of the undertaking holding true. Consequently, even those goods had to comply with the undertaking terms (see also recital 44 of the contested regulation).
53      Next, as stated in recital 45 of the contested regulation, the applicants presented, during the administrative procedure, only certain examples of undertaking invoices concerning the transactions at issue, as well as Excel tables in that regard and corresponding references regarding storage in containers.
54      It is apparent from that evidence that, in principle, for those transactions, the goods in question were stored for many years. Consequently, the link between importation and re-sale was rendered particularly unclear, or even broken, with the result that it was no longer possible precisely to monitor compliance with the undertakings. As stated in recital 45 of the contested regulation and as the Commission maintains, such a situation increases the risk of speculation with regard to the minimum import price.
55      The circumstance, highlighted by the applicants, that the solar modules referred to above were in stock when the undertaking ended in September 2017 – some still being in stock when the anti-dumping and countervailing measures expired entirely in September 2018, or some until the date on which the application was drawn up – is not decisive.
56      As is apparent from recitals 46 and 47 of the contested regulation, and as the Commission correctly submits, clause 3.8 of the undertaking must be read in the context of that undertaking as a whole, and of clause 3.1 thereof. It follows that the exporting producer must observe the minimum import price even where imports are made via a related importer. In those circumstances, the minimum import price must be applied even where the undertaking invoices have been issued on re-sale by the related importer after the expiry of the anti-dumping and countervailing duties, if the goods in question have been cleared for free circulation before that expiry. It is the last minimum import price before the expiry of the anti-dumping and countervailing duties that applies (see also recital 47 of the contested regulation). The situation is similar as regards undertaking invoices relating to goods that remain in stock.
57      Lastly, account must be taken of the fact that, as the Commission maintains, the applicants do not dispute having participated in a scheme consisting, inter alia, in kickback payments and in an undervaluation of the prices of certain services related to solar parks, in the context of sales to importers related to the applicants, as described in recital 23 of the contested regulation. In those circumstances, in view of the difficulties in monitoring the transactions, exacerbated by the fact that the link between the importation of the goods in question and their re-sale was rendered unclear or even broken when they were held in stock for many years, the Commission was fully entitled to take the view that all transactions and invoices relating to solar modules re-sold by the first applicant via its related importer were affected by that fraudulent scheme, irrespective of whether a re-sale to an independent customer in the European Union took place.
58      Consequently, the second plea must be rejected and the action must be dismissed in its entirety.
Costs
59      Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
60      Since the applicants have been unsuccessful, they must be ordered to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.
61      The Council shall bear its own costs, in accordance with Article 138(1) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Zhejiang Sunflower Light Energy Science & Technology Ltd and Sunowe Solar GmbH to bear their own costs and to pay those incurred by the European Commission;
3.      Orders the Council of the European Union to bear its own costs.
Marcoulli
Schwarcz
Valasidis
Delivered in open court in Luxembourg on 20 November 2024.
V. Di Bucci
S. Papasavvas
Registrar
President
*      Language of the case: English.