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 – Implementing Regulations (EU) No 1238/2013 and No 1239/2013 – Implementing Regulations (EU) 2017/367 and 2017/366 – Manifest error of assessment )
In Case T‑660/20,
Zhejiang Beyondsun Green Energy Technology Co. Ltd, established in Huzhou (China), represented by R. Antonini, E. Monard and B. Maniatis, lawyers,
applicant,
supported by
BT Solar d.o.o., established in Varaždin (Croatia),
RC-Log d.o.o., established in Koper (Slovenia),
represented by A. Willems and B. Natens, lawyers,
interveners,
v
European Commission, represented by R. Pethke and T. Maxian Rusche, 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 its action under Article 263 TFEU, the applicant, Zheijang Beyondsun Green Energy Technology Co. Ltd, seeks annulment of Commission Implementing Regulation (EU) 2020/1216 of 24 August 2020 invalidating invoices [that it] issued … in breach of the undertaking repealed by Implementing Regulation (EU) 2017/1570 (OJ 2020 L 276, p. 1; ‘the contested regulation’).
Background to the dispute
2        The applicant manufactures crystalline silicon photovoltaic modules in the People’s Republic of China, which it exports to the European Union.
3        BT Solar d.o.o., the first intervener, established in Croatia, is the importer of the solar modules that are the subject of the undertaking invoices invalidated by the contested regulation, whereas RC-Log d.o.o., the second intervener, established in Slovenia, acted as the customs declarant for the imports in question.
4        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).
5        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 made by the China Chamber of Commerce for Import and Export of Machinery and Electronic Products (‘the CCCME’) on behalf of the applicant and a number of other Chinese exporting producers.
6        On 2 December 2014, 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).
7        On the same date, the Council also adopted Implementing Regulation (EU) No 1239/2013 of 2 December 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).
8        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.
9        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).
10      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/EU (OJ 2014 L 270, p. 6).
11      The countervailing duties were extended by Commission Implementing Regulation (EU) 2017/367 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 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. 1; ‘the expiry review anti-dumping regulation’).
12      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 11(2) of Regulation (EU) 2016/1037 of the European Parliament and of the Council and terminating the partial interim review investigation pursuant to Article 11(3) of Regulation (EU) 2016/1037 (OJ 2017 L 56, p. 1; ‘the expiry review anti-subsidy regulation’).
13      The total ad valorem duty applicable to imports of photovoltaic cells and modules originating in China manufactured and exported by the applicant set by Implementing Regulations No 1238/2013 and No 1239/2013 and, following the expiry review investigations, by the expiry review anti-dumping and anti-subsidy regulations, is 47.7%, that is to say, 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 6.4% countervailing duty (Article 1(2) of Implementing Regulation No 1239/2013, replaced by Article 1(2) of the expiry review anti-subsidy regulation).
14      Provisions equivalent to those referred to in paragraph 8 above were laid down, following the expiry review investigations, in the expiry review anti-dumping and anti-subsidy regulations.
15      By way of its 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 Commission amended the expiry review anti-dumping and anti-subsidy regulations and repealed the undertaking, replacing it with an obligation to pay a duty equal 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 (‘the variable duty MIP’). In order to benefit from the variable duty MIP, a commercial invoice, issued pursuant to Annex V to the expiry review anti-dumping regulation and Annex 4 to the expiry review anti-subsidy regulation, had to be presented at the time the goods entered into free circulation in the European Union. The repeal regulation entered into force on 1 October 2017. From that point, imports with a declared value at or above the variable duty MIP were not subject to duties. If the product was imported at a price below the variable duty MIP, the customs authorities were, by contrast, empowered to levy duties immediately.
16      By letter of 30 April 2020, the Commission informed the applicant that it intended to invalidate invoices issued by the applicant in breach of the undertaking, and disclosed the essential facts and considerations forming the basis of this proposal. A general disclosure document was annexed to that letter.
17      In the general disclosure document, the Commission set out the reasons why it considered that the applicant had breached its commitments made under the undertaking by (i) issuing invoices for which the underlying financial transactions were not in conformity with the minimum import price applicable pursuant to the undertaking; (ii) issuing invoices that did not comply with the content requirements set out in Annex III to the expiry review anti-dumping regulation and Annex 2 to the expiry review anti-subsidy regulation; (iii) reporting a sales price in conformity with the minimum import price applicable at the date of the invoice when in reality the sales price on the ordinary commercial invoice was lower than that reported to the Commission; and (iv) issuing, in parallel, commercial invoices pursuant to Annex V to the expiry review anti-dumping regulation and Annex 4 to the expiry review anti-subsidy regulation, respectively.
18      Consequently, the Commission stated that it intended to (i) invalidate the undertaking invoices, namely invoices issued between 23 August 2017 and 13 September 2017 and (ii) remove the applicant’s name from the new Annex VI to the expiry review anti-dumping regulation and the new Annex 5 to the expiry review anti-subsidy regulation, retroactively from 1 October 2017, the consequence of which is the retroactive levying of the applicable duties on imports covered by those invoices.
19      By email of 31 May 2020, the applicant submitted observations on the general disclosure document.
20      On 9 June 2020, a hearing before the Commission was held via video conference, at the request of the applicant.
21      On 12 June 2020, the applicant provided the Commission with additional clarification and observations.
22      The Commission confirmed its findings in the contested regulation, Articles 1 and 2 of which are worded as follows:
‘Article 1
1.      The undertaking invoices listed in the Annex are declared invalid.
2.      Those undertaking invoices shall not be accepted by customs authorities as commercial invoices pursuant to Annex V to [the expiry review anti-dumping regulation] and Annex 4 to [the expiry review anti-subsidy regulation].
Article 2
1.      Zhejiang Trunsun Solar Co. Ltd shall be removed as of 1 October 2017 from the new Annex VI to [the expiry review anti-dumping regulation] and from the new Annex 5 to [the expiry review anti-subsidy regulation], as amended by [the repeal regulation].
2.      The anti-dumping and countervailing duties due at the time of acceptance of the customs declaration for release into free circulation … shall be collected for the imports customs-cleared with the invoices invalidated under Article 1, except where the applicable limitation periods have expired pursuant to the rules contained in Article 103 of Regulation (EU) No 952/2013.
3.      All other imports from 1 October 2017 from Zhejiang Trunsun Solar Co. Ltd accompanied by a valid commercial invoice issued on or after 1 October 2017 pursuant to Annex V to [the expiry review anti-dumping regulation] and Annex 4 to [the expiry review anti-subsidy regulation] shall remain unaffected.’
Forms of order sought
23      The applicant, supported by the interveners, claims that the Court should:
–        annul the contested regulation;
–        order the Commission and the Council to pay the costs.
24      The Commission, supported by the Council, contends that the Court should:
–        dismiss the action;
–        order the applicant to pay the costs.
Law
25      In support of the action, the applicant relies on three pleas in law.
26      The first alleges manifest error of assessment and infringement of Article 8 of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21; ‘the basic anti-dumping regulation’), and of Article 13 of Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (OJ 2016 L 176, p. 55; ‘the basic anti-subsidy regulation’), that the Commission allegedly committed in finding that the applicant had breached the terms of the undertaking. The second plea alleges unlawful conduct on the part of the Commission in declaring the invoices in question invalid and making them subject to the levy of duties, when the powers on which it relied had expired or been repealed. The third plea alleges infringement of Article 8(1), (9) and (10) and Article 10(5) of the basic anti-dumping regulation, as well as Article 13(1), (9) and (10) and Article 16(5) of the basic anti-subsidy regulation, in that the Commission invalidated undertaking invoices and subsequently directed customs authorities to collect duties retroactively.
27      By email of 7 April 2023, the applicant stated that it was withdrawing its third plea, since it was substantially similar to the questions raised by Jiangsu Seraphim Solar System Co. Ltd in the cases that gave rise to the judgment of 16 March 2023, Commission v Jiangsu Seraphim Solar System and Council v Jiangsu Seraphim Solar System and Commission (C‑439/20 P and C‑441/20 P, EU:C:2023:211).
The first plea in law relating to a breach of the terms of the undertaking
28      The applicant, supported by the interveners, claims that the Commission made a manifest error of assessment and infringed Article 8 of the basic anti-dumping regulation and Article 13 of the basic anti-subsidy regulation – more specifically, paragraph 9 of each of those provisions – by considering, in the contested regulation, that the applicant had breached the terms of the undertaking by issuing invoices with a revised price in accordance with the variable duty MIP for imports released for free circulation following the entry into force of the repeal regulation, repealing the undertaking and introducing the variable duty MIP scheme.
29      The applicant also maintains that, in the contested regulation, the Commission incorrectly interpreted the undertaking or distorted the facts of the case, by finding that (i) the invoices accompanying the imports, issued before 1 October 2017 – that is to say, before the repeal of the undertaking – should have been drawn up according to the terms of the undertaking, irrespective of the date of release for free circulation of the goods concerned; (ii) the applicant was not allowed to issue invoices other than undertaking invoices prior to the date of entry into force of the repeal regulation; and (iii) the invoices in question are invalid, without taking account of the fact that they were drawn up in accordance with the legal framework of the variable duty MIP, as introduced by the repeal regulation.
30      The applicant argues, further, that the repeal regulation affords the Commission no legal basis for declaring commercial invoices issued in accordance with the variable duty MIP invalid; the applicant also claims that it could legitimately expect that no duty would be levied on the goods in question, since it had complied with the new legal framework of the variable duty MIP introduced by the repeal regulation.
31      The Commission disputes the applicant’s claims.
32      In that connection, it should be observed that it is apparent, on the one hand, from clause 3.1 of the undertaking that the companies party thereto undertook to sell the goods covered only at a price equal to or higher than the minimum import price laid down in clause 3.4 and in Annex I; and, on the other hand, from clause 2.2 of the undertaking that that minimum price is to be respected for all exports to the European Union of the product covered which would otherwise be subject to anti-dumping duty.
33      Furthermore, clause 2.5 of the undertaking contains an obligation, for the companies party to that undertaking, to submit detailed sales reports to the Commission, so as to enable that institution to monitor compliance with the undertaking. To that end, it is stated in Annex II to the undertaking that the submission of false or misleading information may lead the Commission to withdraw acceptance of the undertaking. It should also be pointed out that, in accordance with clause 9.6 of the undertaking, the annexes constitute an integral part thereof.
34      Finally, it should be recalled that the undertaking was applicable until 30 September 2017 and that, from 1 October 2017, the variable duty MIP scheme entered into force, establishing a minimum import price that was lower than that provided for by the undertaking.
35      In the present case, it is apparent from the items of evidence submitted to the General Court by the applicant that, on 14 and 18 August 2017, the latter agreed to sell to the first intervener solar modules at a price in conformity with the undertaking and, to that end, issued two pro forma invoices. The applicant then issued, between 23 August and 13 September 2017, 12 invoices in conformity with the undertaking, which it declared to the Commission in accordance therewith, and in respect of which it obtained export undertaking certificates.
36      On 20 September 2017, further to the publication of the repeal regulation on 16 September 2017, the applicant agreed with the first intervener to revise the price stated in those invoices, in order to reduce it to a price that was in conformity with the variable duty MIP but lower than the minimum price provided for in the undertaking. The applicant then issued two revised pro forma invoices, bearing the same number as the invoices initially issued but dated 20 September 2017, and drew up new commercial invoices bearing the same number and date as the 12 initial undertaking invoices.
37      It follows that, on 20 September 2017, the applicant agreed to sell to the first intervener products covered by the undertaking, at a price that was lower than the minimum import price provided for by that undertaking. However, on that date, the undertaking remained in force, which the applicant does not dispute, the consequence of which is, on the one hand, that by agreeing such a price, it breached that undertaking and, on the other hand, that it was not yet entitled to issue invoices under the variable duty MIP scheme. It is, moreover, clear that the applicant submitted the revised invoices to the Slovenian customs authorities, but failed to inform the Commission that the initial undertaking invoices, which it had nonetheless declared, had been amended and that the price stated therein had been revised downwards, which appears to be contrary to the prohibition on the submission of false or misleading information laid down in Annex II to the undertaking.
38      In any event, it is difficult to conceive that invoices, dated between 23 August and 13 September 2017, might be subject to the variable duty MIP scheme, when the regulation introducing that scheme was published on 16 September 2017 and entered into force on 1 October 2017, with the result that the applicant’s argument that only the date of release for free circulation of the goods concerned counts, cannot be upheld. The applicant’s argument that it could legitimately expect that the variable duty MIP scheme would apply to the goods covered by those invoices, even when these had been issued prior to the entry into force of that scheme, must, on those grounds, be rejected.
39      Consequently, the Commission did not make a manifest error of assessment or wrongly interpret the undertaking or distort the facts in considering, in the contested regulation, that the applicant had breached the terms of the undertaking and, more particularly, that the invoices concerned ought to have complied with that undertaking; that the applicant was not allowed to issue invoices under the variable duty MIP scheme prior to the entry into force of that scheme; and, accordingly, that the invoices concerned were invalid, even if they were allegedly in compliance with the new scheme.
40      Furthermore, in so far as the applicant maintains that the Commission had no legal basis for declaring commercial invoices issued in accordance with the variable duty MIP scheme invalid, it should be observed that, in paragraphs 115 to 119 of its 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 Court of Justice found, in essence, that Article 8(9) of the basic anti-dumping regulation and Article 13(9) of the basic anti-subsidy regulation could permit the invalidation of invoices and the levying of duties in respect of transactions covered by those invoices, in particular in the event of breach of an undertaking.
41      Moreover, it must be pointed out that it is clear, in essence, from recital 54 of the repeal regulation that an exporting producer which is found to have breached the undertaking should not benefit from the variable duty MIP, even if these findings are made after the termination of the undertaking, and that, in such cases, the Commission is empowered to remove the names of the respective company or companies from the new Annex VI to the expiry review anti-dumping regulation and the new Annex 5 to the expiry review anti-subsidy regulation by the same legal act in which the non-compliance is established.
42      Accordingly, contrary to the applicant’s claims, the Commission did indeed have a legal basis for deciding, in the contested regulation, having found that the applicant had failed to comply with the undertaking, to declare the invoices concerned invalid, to order the levying of duties in respect of the transactions covered by those invoices, and to remove the name of the applicant from the new Annex VI to the expiry review anti-dumping regulation and the new Annex 5 to the expiry review anti-subsidy regulation, retroactively from 1 October 2017.
43      It follows from the foregoing that the applicant has failed to demonstrate that, in the contested regulation, the Commission made a manifest error of assessment or infringed Article 8 of the basic anti-dumping regulation or Article 13 of the basic anti-subsidy regulation.
44      Accordingly, the first plea in law must be rejected.
The second plea in law relating to the Commission’s competence to adopt the contested regulation
45      The applicant, supported by the interveners, claims that it is apparent from Articles 1 and 2 of the contested regulation that the Commission declared the invoices at issue invalid and ordered the levy of the duties due at the time of the acceptance of the undertaking ‘under the powers’ conferred by Article 3(2)(b) of Implementing Regulation No 1238/2013, Article 2(2)(b) of the 2017 expiry review anti-dumping regulation, Article 2(2)(b) of Implementing Regulation No 1239/2013 and Article 2(2)(b) of the 2017 expiry review anti-subsidy regulation. However, both of the 2013 implementing regulations expired, according to the applicant, on 7 December 2015, pursuant to Article 5 of each of those implementing regulations, while the 2017 implementing regulations expired on 3 September 2018, pursuant to Article 6 of each of those implementing regulations.
46      Furthermore, in the applicant’s submission, even before the expiry of the 2017 implementing regulations, the provisions in question had been repealed by Article 1(4) and (5) and Article 3(3) and (4) of the repeal regulation. The applicant adds that it was not sufficient that the repeal regulation should explain that the Commission’s powers would continue after the repeal. In the applicant’s view, the Commission therefore did not have the power to invalidate invoices and order customs authorities to collect duties retroactively. Accordingly, in order to invalidate the undertaking and order the collection of duties, the Commission unlawfully relied, in the contested regulation, on powers that no longer existed and, in doing so, acted without any legal basis.
47      The Commission disputes the applicant’s claims.
48      It should be observed that, as is clear from paragraph 118 of the judgment of 16 March 2023, Commission v Jiangsu Seraphim Solar System and Council v Jiangsu Seraphim Solar System and Commission (C‑439/20 P and C‑441/20 P, EU:C:2023:211), the power of the EU institutions entrusted with the implementation of the basic anti-dumping and anti-subsidy regulations to require payment, following the withdrawal of acceptance of an undertaking, of the duties due in respect of the transactions covered by the invalidated undertaking invoices, as provided for, in the present case, in Article 2(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 aforementioned judgment, the same conclusion must moreover be drawn to the extent that Article 1(1) of the contested regulation provides for the invalidation of those undertaking invoices.
49      In the present case, the Commission referred, in recital 27 of the contested regulation, to the provisions referred to in paragraph 48 above by stating that it was on that basis that it had informed the interested parties, including the applicant, of its intention to invalidate the undertaking invoices, and by affording those parties the possibility of being heard and of submitting comments. Recitals 53 and 57 of the contested regulation are also to be understood in that same vein. Finally, recital 48 of the contested regulation refers to the definitive anti-dumping and countervailing duties imposed by Article 9(4) of the basic anti-dumping regulation and by Article 14(4) of the basic anti-subsidy regulation.
50      In those circumstances, contrary to what the applicant states, Articles 1 and 2 of the contested regulation cannot be interpreted as meaning that the Commission intended to declare the undertaking invoices in question invalid and levy the anti-dumping and countervailing duties due at the time of acceptance of the customs declaration of release for free circulation ‘under the powers conferred’ by the provisions recalled in paragraph 45 above, which essentially 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 contained 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 recalled in paragraph 45 above are limited to providing for the establishment of a system for issuing undertaking invoices without, however, attributing competence within the meaning on which the applicant relies.
51      In the light of the foregoing, the applicant’s claims that the Commission relied on powers that had either expired or been repealed must be rejected as unfounded.
52      Accordingly, the second plea in law must be rejected and the action dismissed in its entirety.
Costs
53      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.
54      Since the applicant has been unsuccessful, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.
55      The Council is to bear its own costs, in accordance with Article 138(1) of the Rules of Procedure.
56      The interveners are each to bear their own costs, in accordance with Article 138(3) of the Rules of Procedure.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby:
1.      Dismisses the action;
2.      Orders Zhejiang Beyondsun Green Energy Technology Co. Ltd to bear its own costs and to pay those incurred by the European Commission;
3.      Orders BT Solar d.o.o., RC-Log d.o.o. and the Council of the European Union each to bear their 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.