2013R1238 — EN — 06.12.2013 — 000.001

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COUNCIL IMPLEMENTING REGULATION (EU) No 1238/2013

of 2 December 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







THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on the Functioning of the European Union, Having regard to Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community ( 1 ) (‘the basic Regulation’), and in particular Article 9(4) and 14(1) thereof, Having regard to the proposal from the European Commission, after consulting the Advisory Committee, Whereas:PROCEDUREProvisional Measures (1) The European Commission (‘the Commission’) by Regulation (EU) No 513/2013 ( 2 ) (‘the provisional Regulation’) imposed a provisional anti-dumping duty on imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the People's Republic of China (‘the PRC’ or the ‘country concerned’). (2) The investigation was initiated following a complaint lodged on 25 July 2012 by EU ProSun (‘the complainant’) on behalf of producers representing more than 25 % of the total Union production of crystalline silicon photovoltaic (‘PV’) modules and key components. The complaint contained prima facie evidence of dumping of the said product and of material injury resulting therefrom, which was considered sufficient to justify the initiation of an investigation. Registration (3) As mentioned in recital (3) to the provisional Regulation, following a request by the complainant supported by the required evidence the Commission adopted on 1 March 2013 Regulation (EU) No 182/2013 ( 3 ) making imports of crystalline silicon PV modules and key components (i.e. cells and wafers) originating in or consigned from the People's Republic of China subject to registration as of 6 March 2013. The provisional Regulation ceased the registration of imports for the purpose of the anti-dumping investigation in accordance with Article 14(5) of the basic Regulation since a provisional anti-dumping duty provided protection against dumped imports. (4) Some interested parties claimed that the decision for registration of imports was unfounded, as the conditions were not met pursuant to Article 14(5) of the basic Regulation. However, these claims were not substantiated or based on factual evidence. At the time the decision was taken to register imports the Commission had sufficient prima facie evidence justifying the need to register imports, in particular a sharp increase both in terms of absolute imports and in terms of market share. The claims in this regard had therefore to be rejected. Acceptance of an Undertaking with regards to provisional duties (5) By Commission Decision 2013/423/EU ( 4 ), the Commission has accepted an undertaking offered by exporting producers together with the China Chamber of Commerce for Import and Export of Machinery and Electronic Products (‘CCCME’). Subsequent Procedure (6) Subsequent to the disclosure of the essential facts and considerations on the basis of which it was decided to impose provisional anti-dumping measures (‘the provisional disclosure’), the Government of China (‘GOC’) and several interested parties made written submissions making known their views on the provisional findings. The parties who so requested were granted the opportunity to be heard. The Association for Affordable Solar Energy (‘AFASE’), representing importers, downstream and upstream operators and one importer requested and were afforded hearings in the presence of the Hearing Officer of the Directorate-General for Trade. (7) The Commission continued to seek and verify all information it deemed necessary for its definitive findings. The oral and written comments submitted by the interested parties were considered and, where appropriate, the provisional findings were modified accordingly. (8) In addition, verification visits were carried out at the premises of the following companies: (i) Downstream operators — Jayme de la Costa, Pedroso, Portugal — Sunedison Spain Construction, Madrid, Spain (ii) Independent consultant — Europressedienst, Bonn, Germany (9) AFASE questioned the legal basis for the visit carried out at the premises of Europressedienst, as it is not an interested party in this investigation and does therefore not fall under Article 16 of the basic Regulation. Europressedienst, as mentioned in recitals (99) and (120) to the provisional Regulation has provided information on macroeconomic indicators. It is clarified that the Commission carried out an on-the-spot verification at the premises of Europressedienst for the sake of the principle of good administration to verify the reliability and correctness of data on which the Commission based its findings. (10) The GOC reiterated the claim that its rights of defence in relation to access to the files open for inspection by interested parties were violated because (i) information was missing from the non-confidential files without ‘good cause’ being shown or providing sufficiently detailed summaries, or exceptionally, the reasons for the failure to provide the non-confidential summary, (ii) the non-confidential version of an entire questionnaire response of a Union producer was missing and (iii) the delays to make non-confidential versions of the Union producers' questionnaire responses available for interested parties were excessive. (11) (i) Regarding the claim that information was missing from the open file, the interested party did not specify to which information it was referring to. (ii) Its claim that the non-confidential version of an entire questionnaire response has not been made available was incorrect. (iii) As to the delays in making available the non-confidential replies of the questionnaires of the sampled Union producers, it had been explained to the party concerned that the questionnaires were only added to the non-confidential file after having been checked as to their completeness and reasonableness of the summaries. In order to ensure the Union producers' right to anonymity, it was also ascertained that the non-confidential versions of the questionnaires did indeed not reveal the identity of the Union producer concerned. In some cases, the non-confidential versions needed therefore to be corrected accordingly by the party submitting it before they could be made available for other interested parties. (12) In any event, it is considered that this did in no way affect the interested parties' rights of defence. The Commission has given all the interested parties the opportunity to respond to the information included in the file open for inspection in time so that their comments could be taken into consideration, when substantiated and warranted before any conclusions were made in the investigation. The interested party had every opportunity to comment on the questionnaires from sampled Union producers also following the provisional and the final disclosure. Therefore, even if the disclosures and the access to the file open for inspection by interested parties are based on different legal provisions, it should be noted that there were ample opportunities for the interested parties to comment on all information made available by any party to the investigation. Therefore, this claim had to be rejected. (13) All interested parties were informed of the essential facts and considerations on the basis of which it was intended to recommend the imposition of a definitive anti-dumping duty on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People's Republic of China and the definitive collection of the amounts secured by way of provisional duty (‘the final disclosure’). All parties were granted a period within which they could make comments on the final disclosure. (14) The comments submitted by the interested parties were considered and taken into account where appropriate. Acceptance of an undertaking in view of definitive duties (15) Following final disclosure, the Commission received an amended offer for an undertaking by exporting producers together with the CCCME, which covers also the parallel anti-subsidy investigation. By Commission Implementing Decision 2013/707/EU ( 5 ) of 4 December 2013 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, the Commission has confirmed the acceptance of that undertaking. Parties concerned by the proceedingSampling of Union producers (16) Following the imposition of provisional measures, some interested parties reiterated the argument that excessive use of confidentiality prevented them from commenting on the selection of the sample of Union producers and thus from the proper exercise of their rights of defence. The Commission already addressed this issue in recital (9) to the provisional Regulation. As no new information was provided in this respect, the conclusions in recital (9) to the provisional Regulation are confirmed. (17) The GOC reiterated its claim that the use of confidentiality of the names of the complainants and sampled Union producers is not warranted. As already stated in recital (9) to the provisional Regulation, the Union producers requested that their names be kept confidential due to the risk of retaliation. The Commission considered that these requests were sufficiently substantiated to be granted. The information that has been provided to the Commission in order to substantiate the risk of retaliation cannot be disclosed to third parties, as such disclosure would defeat the purpose of the request for confidentiality. Moreover, in a case, where, as reported by the GOC, a Union producer re-evaluated its position and revealed its identity by filing an application for a Court case against the provisional Regulation, there is no longer ground to disclose information on the basis of which anonymity was granted, as the identity has been revealed. (18) Further to the provisional disclosure, one interested party reiterated that the information on which the selection of the sample was based was not reliable, without, however, providing any new evidence in this regard. This claim was therefore rejected. (19) Following the final disclosure, the CCCME reiterated the arguments about the method used for the selection of the provisional sample of the Union producers. It claims in particular that the Institutions have not taken into account 120 producers. The Commission already addressed this issue in recital (9) to the provisional Regulation. Moreover, the Institutions have verified the activities of the companies provided on that list. It turned out that that list mostly includes installers, distributors, related importers and exporting producer in China, Taiwan, and India. It therefore was not apt to demonstrate that the Institutions had overlooked a significant number of Union producers. Moreover, the CCCME has not contested the total Union production by providing alternative figures, nor has it put forward any evidence that the representativity of the sample could have been affected, as none of the alleged additional Union producers would have been selected into the sample, had it been known to the Commission. (20) Following the exclusion of wafers from the definition of the product concerned, and thus from the scope of this investigation as cited in recital (32) below, the final sample consisted of eight Union producers. In the absence of any further comments with regard to the sampling of Union producers, the findings in recitals (7) to (10) to the provisional Regulation are herewith confirmed, as amended above. Sampling of unrelated importers (21) Following the imposition of provisional measures, as mentioned in recital (12) to the provisional Regulation, the Commission contacted additional importers that had already cooperated in the investigation at the initiation stage by providing basic information on their activities related to the product under investigation during the investigation period, as specified in the Notice of Initiation. The purpose was to determine whether the size of the sample of unrelated importers could be increased. Six companies, qualifying as unrelated importers trading the product concerned (i.e. purchasing and reselling it), came forward and were willing to cooperate further in the investigation. Out of these six, five replied within the deadline. Out of the five replies received, only three were sufficiently complete and allowed for a meaningful assessment. On this basis, the sample of the unrelated importers was enlarged and consisted of four importers for modules, representing around 2 % — 5 % of the total imports from the country concerned. Given the structure of the unrelated importers, which were mostly small and medium-sized companies, it was not possible to have a sample representing a larger share, given the limited resources at the disposal of the Institutions. (22) In the absence of any further comments with regard to the sampling of unrelated importers, recitals (11) and (12) to the provisional Regulation, as amended above are confirmed. Sampling of exporting producers (23) Following the provisional disclosure, a number of non-sampled companies submitted comments arguing that their situation is different from the sampled companies. They argued that, as a consequence, they should benefit from an individual duty rate pursuant to Article 17(3) of the basic Regulation. However, due to the high number of co-operating companies (often groups of companies), it was not possible to individually investigate all companies. Therefore, pursuant to Article 9(6), these companies are subject to the weighted average duty of the sampled companies. (24) In the absence of any further comments with regard to the sampling of exporting producers recitals (13) and (14) to the provisional Regulation are confirmed. Investigation period and period considered (25) As set out in recital (19) to the provisional Regulation, the investigation of dumping and injury covered the period from 1 July 2011 to 30 June 2012 (‘the investigation period’ or ‘IP’). The examination of trends relevant for the assessment of injury covered the period from 2009 to the end of the investigation period (‘the period considered’). PRODUCT CONCERNED AND LIKE PRODUCTIntroduction (26) As set out in recitals (20) to (49) to the provisional Regulation, the product concerned as provisionally defined is crystalline silicon PV modules or panels and cells and wafers of the type used in crystalline silicon PV modules or panels, originating in or consigned from the PRC. The cells and wafers have a thickness not exceeding 400 micrometers. This product is currently falling within CN codes ex 3818 00 10 , ex 8501 31 00 , ex 8501 32 00 , ex 8501 33 00 , ex 8501 34 00 , ex 8501 61 20 , ex 8501 61 80 , ex 8501 62 00 , ex 8501 63 00 , ex 8501 64 00 and ex 8541 40 90 (‘the product concerned’). (27) The following product types are excluded from the definition of the product concerned: — solar chargers that consist of less than six cells, are portable and supply electricity to devices or charge batteries; — thin film PV products; — crystalline silicon PV products that are permanently integrated into electrical goods, where the function of the electrical goods is other than power generation, and where these electrical goods consume the electricity generated by the integrated crystalline silicon PV cell(s). Claims regarding the product scopeExclusion of wafers (28) Following the provisional disclosure, interested parties claimed that wafers should be removed from the product scope since wafers do not share the same basic physical, chemical and technical characteristics as cells and modules. In addition to the arguments brought forward at the provisional stage, two additional arguments were brought forward in this respect after the provisional disclosure. (29) Firstly, interested parties claimed that wafers can be used for other purposes than for the production of cells, notably the production of integrated circuits and other micro devices. In this respect, it is noted that not all wafers are included in the product scope of this investigation, which is limited to ‘wafers of the type used in crystalline silicon PV modules or panels’, and that those wafers have ‘a thickness not exceeding 400 micrometres’. While wafers certainly do exist in other applications, the investigation never covered wafers which are used in the production of other products such as integrated circuits. In addition, no producers, importers or users involved in the market for these other types of wafers came forward alleging that their wafers would be subject to registration or provisional anti-dumping duties. It is therefore confirmed that these other types of wafers are not subject to the product scope of this investigation. At the same time, this shows that wafers do not necessarily have the same end use as cells and modules. (30) Secondly, interested parties claimed that unprocessed wafers possess none of the essential electric properties which distinguish solar cells and modules from other products. In particular, wafers lack the ability to generate electricity from sunlight, which is the key function of crystalline photovoltaic cells and modules. (31) This claim can be accepted. Indeed after further verification and contrary to what is stated in recital (36) to the provisional Regulation that ‘modules, cells and wafers have the same end use, converting sunlight into electricity’, only once the wafer is transformed into a cell, does it obtain the functionality to generate electricity from sunlight. (32) Due to the different basic physical and technical characteristics, defined during the investigation inter alia as the functionality to generate electricity from sunlight, it is concluded on balance that wafers should be excluded from the definition of the product concerned, and thus from the scope of this investigation. Separate investigations for cells and modules (33) Interested parties reiterated that cells and modules are not a single product, and should therefore be assessed separately, mainly repeating arguments already addressed in recitals (27) to (39) to the provisional Regulation. Unlike wafers, however, cells and modules do share the same basic property, i.e. the ability to generate electricity from sunlight. These arguments were therefore rejected. (34) Following final disclosure, one exporter argued that cells by themselves cannot produce electricity. Allegedly, they need to be integrated into modules to do so. However, each cell by itself has a capacity to generate electricity from sunlight of typically around 4W. While this power may be insufficient for most applications which require an assembly of multiple cells into modules, this does not mean that a cell by itself does not already have the capacity to generate electricity. (35) Following final disclosure, one exporter argued that the impossibility to establish a Normal Value for modules on the basis of the Normal Value for cells, as described in recital (100) below, demonstrates that modules and cells should not be considered a single product. (36) In this respect, it is noted that in the majority of anti-dumping investigations, including the present investigation, a comparison between Normal Values and export prices is made on the basis of product types. This is done since often a very broad range of product types share the same basic physical, technical and/or chemical characteristics, which often leads to a situation where product types with substantially different costs and prices fall under the definition of the ‘product concerned’. The mere fact that it is not possible to establish a Normal Value for a certain product type on the basis of the Normal Value of another product type does not in itself mean that these product types cannot be considered a single product. As described in recital (32) above, both cells and modules do share the same basic physical and technical characteristics, inter alia the functionality to generate electricity from sunlight. (37) It is further argued that if cells and modules were one single product with minor differences, adjusting the prices of cells to establish a price of modules should not be difficult. In this respect it is noted that there is no requirement that there are only minor differences between the different types of the product concerned. To the contrary, it is sufficient that the different types of the product concerned share the same basic physical, technical and/or chemical characteristics. In the present case, this is the case for modules and cells, inter alia the functionality to generate electricity from sunlight. (38) The same party further argued that cells are not just another type of module, but an entirely different product. In effect, a cell is the key component of a module. As a key component, a cell is clearly not ‘an entirely different product’, as modules and cells share the same basic characteristics of generating electricity from sunlight, as indicated in recital (32) above. (39) The same party argued in addition that when the samples for Union producers and Chinese exporters were selected, the difference between cells and modules was taken into account. Therefore, different duty rates for modules and cells should have been established. In this respect, it is confirmed that the difference between modules and cells was indeed taken into account when sampling Union producers and Chinese exporters, as indicated in recitals (10) and (14) to the provisional Regulation. This, however, was only done to ensure that the sample is representative and does as such not mean that cells and modules should not be considered a single product concerned, or that separate duty rates should be established for cells and modules. Indeed, in order to ensure that the sample was representative for all product types, it was important to distinguish between cells and modules when selecting the sample. Furthermore, as there was a certain degree of uncertainty with regards to the question as to whether cells and modules were to be regarded as one product or as two separate products, it was necessary to ensure representativity for both possible outcomes. (40) In addition, it is argued that recital (100) below stating that the processing costs for modules are significant is in contradiction with recital (32) to the provisional Regulation, which states that the value added is not concentrated in a particular stage of the production process. In this respect, it is recalled that recital (100) also clarifies that the cost difference between cells and modules is 34 %, which means that 66 % of the value of a modules stems from the cell. It is therefore concluded that the value added is not concentrated in a particular stage of the production process. (41) Exporting producers claimed that the fact that the undertaking imposes different minimum import prices and volumes for cells and modules allegedly confirms that modules and cells are distinct products requiring two distinct investigations. The different minimum import prices, however, are merely an indication that cells and modules are different groups of product types which are sold at different prices. Therefore, it is necessary to define different prices to make the minimum import prices meaningful. (42) Also, the fact that cells and modules are distinct groups of product types is not as such relevant for the definition of the product concerned. For the definition of the product concerned, it is sufficient that the products share the same basic characteristics and end uses, which is the case for modules and cells as described in recitals (32) and (48) respectively. (43) The GOC argued that the assessment whether cells and modules are a single product concerned does not address a number of criteria defined by the Appelate Body in EC — Asbestos ( 6 ). However, these criteria are used for the definition of the ‘like product’, not the product concerned. In other words, these criteria have to be used to define the like product, for example the like product produced by Union Industry, which is then compared with the product concerned exported by the Chinese exporting producers. These criteria are not pertinent when defining the product concerned. In any event, the Institutions observe that the application of the criteria used in EC — Asbestos to the definition of the product concerned in the present case would not lead to a different outcome. The first and the second criteria (properties, nature and quality respectively end-uses) are identical to the criteria physical, chemical and technical properties and end-uses used in the preceeding recitals. The third criterion (consumers taste and habits) is not really useful for the present case, as cells are the key component of modules; as regards the fourth criterion, tariff classification, it is noted that both cells and modules can be declared under customs heading 8541 40 90 , while the customs headings under heading 8501 are for electric generators in general and not in particular for solar products. (44) Other interested parties argued that an objective application of the criteria developed by the Court of Justice in previous cases ( 7 ) allegedly leads to the conclusion that modules and cells are different products. In this respect, it is noted that the court only indicated a number of criteria which may be taken into account — there is no obligation to use all criteria in all cases, since not all of them may be relevant. These criteria were assessed in recitals (27) to (39) to the provisional Regulation, where it was found that a number of criteria are not relevant in the present case. In the Brosmann case the assessment whether different types of shoes belong to the ‘product concerned’ was also made on the basis of only three criteria which were found to be relevant. As the interested parties did not provide any reasoning why an objective application of the criteria leads one to conclude that modules and cells are distinct products, the argument cannot be accepted. (45) In addition, it is recalled that cells and modules have the same basic end uses, i.e. they are sold for integration into PV solar systems. The modules performance is directly linked to the performance of the cells, as indicated in recital (28) to the provisional Regulation. (46) One interested party argued that with the exclusion of wafers from the product scope, and due to the significant processing involved to make modules from cells, the argument that cells and modules have the same end uses also stands refuted. It is also argued that the assessment that modules and cells have the same end uses is based on the assumption that wafers, modules and cells have the same production process. (47) Firstly, the conclusion that the assessment that modules and cells have the same end uses is based on the production process is wrong. While both statements are indeed in the same recital (36) to the provisional Regulation, this does not mean that one conclusion is based on the other assumption. The word ‘moreover’ separating the two statements makes it clear that the second statement is not based on the first. In addition, the two statements are made to address separate issues under the heading ‘End use and interchangeability’. The first statement concerning the production process addresses interchangeability, while the second statement addresses end use. The underlying assumption that the assessment that modules and cells have the same end uses is based on the assumption that wafers, modules and cells have the same production process is therefore incorrect. (48) As to the actual end use of cells and modules, it is not disputed by interested parties that modules and cells are sold for integration into PV solar systems. The conclusion that modules and cells have the same end use is therefore confirmed. Mono and multi-crystalline cells (49) One interested party claimed that there was no production of mono crystalline cells in the Union, and that their exports of mono crystalline cells were not competing with the Union industry. The investigation showed however that there was indeed production of mono crystalline cells in the Union. This argument was therefore rejected. In any event, the General Court held in Brosmann that the absence of Community production of a particular product type is not decisive. ‘Consigned from’ clause (50) Interested parties argued that the extension of the scope of the investigation to products ‘consigned from’ the PRC was unjustified, as the investigation was initiated only against products originating in the PRC. (51) However, goods consigned from the PRC were already covered at the initiation stage. In point 5 of the Notice of Initiation ( 8 ) it is stated that ‘companies which ship the product concerned from the People's Republic of China but consider that part or even all of those exports do not have their customs origin in the People's Republic of China are invited to come forward in the investigation and to furnish all relevant information’. It is therefore clear that all companies consigning goods from the PRC had the opportunity to co-operate in this investigation. Furthermore, since the product under investigation frequently incorporates components and parts from different countries, it was also announced in point 5 of the Notice of Initiation that ‘special provisions may be adopted’ to address this issue. (52) It is therefore considered that all economic operators affected were duly informed of the possibility that special provisions in respect of goods consigned from the PRC may be adopted, if appropriate, and were invited to co-operate in the investigation. Thus the scope of the investigation was not extended to products ‘consigned from the PRC’, since these were covered from the outset. (53) Following disclosure, interested parties argued that irrespective of the provisions in the Notice of Initiation referred to in recital (51) above, the investigation was limited to goods originating in the PRC and did not assess the impact of goods consigned from the PRC. (54) In this respect, it is noted that the following steps were taken to ensure that all goods consigned from the PRC were assessed during the investigation, and not only goods originating in the PRC: — All companies which ship the product concerned from the PRC were invited to come forward in the investigation irrespective of the origin of the goods. — In Annex A of the Notice of initiation, exporters were asked to report information for all products manufactured by the company. This information was not limited to goods originating in the PRC. — On the basis of this information, which contained all exports to the EU irrespective of the origin of the goods, a representative sample was selected. — The sampled producers received a questionnaire for ‘producers exporting to the European Union’, and the PRC was referred to as ‘country concerned’, not country of origin. It was therefore clear that all goods irrespective of the origin of the goods were investigated. (55) On this basis, it is concluded that the investigation covered all goods originating in or consigned from the PRC, and that the findings of the investigation, including dumping and injury, cover all goods originating in or consigned from the PRC. (56) Following final disclosure, interested parties argued that the complaint contained only prima facie evidence concerning imports of solar panels originating in the PRC, not goods consigned from the PRC. In this respect, it needs to be clarified that the complaint indeed covered goods ‘from the PRC’, which can be seen from the cover page submitted by the applicant bearing the stamp. Before this page, there is another page on the file which indeed uses the wording ‘originating in the People's Republic of China’. But this case was not part of the document submitted by the complainant, but added as a cover page by the Commission Services, using the name of the investigation rather than repeating the title of the complaint. It is therefore considered that the complaint covered all goods from the PRC, whether originating in the PRC or not. (57) Chinese exporting producers further argued that exporting producers in third countries cannot reasonably be expected to have known that their products could also be targeted by the investigation. In this respect it is noted that the measures do not apply to goods which are in transit in the sense of Article V GATT. Therefore, exporting producers which have no operations in the PRC are not affected by the measures. Furthermore, no exporting producers in third countries came forward raising the issue that the products they export are subject to the anti-dumping duty. (58) The same exporting producers argued that exporting producers in third countries were not asked to come forward, and not given the opportunity to show that their products are not dumped. The Institutions consider that those exporting producers without any operations in the PRC are not affected by the measures, as their goods, if consigned from the PRC, will have been in transit. All other exporting producers were informed by the Notice of Initiation that their operations are part of the investigation. (59) The GOC argued that while Article 1(3) of the basic Regulation allows deviating from the principle that the exporting country is the country of origin, this Article cannot be used in the present case. In support of this claim they argue that no complete analysis whether the exporting country may be an intermediary country was made. The Institutions disagree with this interpretation of Article 1 (3) of the basic Regulation. No party contests that there is significant production in the PRC. Whether or not the PRC is the country of origin of the finished goods depends on several factors. The analysis of dumping, injury, causation and Union interest carried out by the Institutions refers to that production, irrespective of the question whether the finished exported good has its customs origin in the PRC. As there were strong indications that not all products which were at least partially produced in the PRC would be considered to have their customs origin in the PRC, the Institutions decided that it was necessary to cover also products for which the PRC is only an intermediary country. (60) The GOC further argued that since no Chinese exporter has been granted MET, there is no comparable price for solar panels in the PRC, and as a consequence the PRC cannot be used as an intermediate country. However, in this respect it is noted that the three conditions of Article 1(3) of the basic Regulation are given as examples only, and not all conditions may be relevant in all cases. In the present case, since no Chinese exporter has been granted MET, the comparable price had to be established in the analogue country — and this comparable price is the same irrespective of whether the PRC is considered the country of origin or the intermediate country. Therefore, the issue whether there is a comparable price ‘in that country’ is irrelevant, as in the present case the comparable price is not established ‘in that country’, but in the analogue country. Solar chargers (61) Following the provisional disclosure, interested parties claimed that the definition of ‘solar chargers that consist of less than six cells’ is too narrow, and should be extended to products with a similar function which are not covered by this definition such as products with a similar size using a larger number of smaller cells. (62) In addition, interested parties claimed that the definition of ‘silicon PV products that are permanently integrated into electrical goods’ is too narrow, as only the complete electrical good is excluded, while solar components for integration into the electrical goods are not necessarily excluded. (63) Indeed, an analysis of the above arguments showed that it is more appropriate to add to the exclusion of such products a criterion on the basis of a technical standard. In particular, it was established that the definitions of the following standard more appropriately define the products which should be excluded from the scope of the measures: international Standard IEC 61730-1, Application Classes, Class C: Limited Voltage, limited power applications (p. 13) ( 9 ). (64) Following definitive disclosure, comments were received concerning the exclusion based on the international standard mentioned above. It was argued that rather than referring to the standard, it would be more appropriate to define the exclusion on the basis of the output voltage and the power output as ‘modules or panels with a output voltage not exceeding 50 V DC and a power output not exceeding 50 W solely for direct use as battery chargers in systems with the same voltage and power characteristics’. This claim could be accepted, and the exclusion is finally determined according to this definition. Roof-integrated solar modules (65) Another interested party claimed that roof-integrated solar modules should be excluded from the product scope of the investigation, since they combine the functionality of a solar module with that of a roof tile or slate. Therefore, they would not be directly interchangeable with a standard solar module. (66) The investigation, however, showed that both standard modules and the roof-integrated solar modules have to comply with the same electrical standards. In addition while the roof-integrated solar module cannot be simply replaced with a standard module, it can be replaced by a standard module plus roof tiles or slate. These products therefore have the same basic technical property of generating electricity from sunlight. The added functionality (which is otherwise provided by roofing material) was not considered substantial and does not warrant an exclusion of roof-integrated solar modules from the product scope. (67) Following definitive disclosure, the same interested party argued that the absence of dual-interchangeability between roof-integrated solar modules and standard solar modules is an indication that roof-integrated solar modules should be excluded from the scope of the measures, referring to the footware ( 10 ) case in general and special technology athletics footwear ‘STAF’ in particular. However, the reasons for the exclusion of STAF were numerous, and the absence of dual interchangeability by itself was not considered a sufficient ground by the General Court in the Brosmann ( 11 ) case, which confirmed that very different product such as city trotters and hiking boots can indeed be considered product concerned in a single anti-dumping investigation despite their differences. (68) In addition, the interested party argued that the absence of production in the Union and the fact that the interested party holds intellectual property rights is allegedly a confirmation that roof-integrated solar modules are innovative and different from any other product. However, referring again to the footwear case mentioned by the interested party, the General Court held in Brosmann that ‘the absence of Community production of that type of footwear and the existence of a patent are not conclusive.’ ( 12 ). As a result, patented technology footwear was considered product concerned in that case. (69) The interested party also argued that roof-integrated solar modules should be excluded from the definition of the product concerned, since they are sold at substantially higher prices than standard modules. Also, in the footwear case STAF above a certain price were excluded from the definition of the product concerned. In this respect, it is noted that a roof-integrated solar module does combine the functionality of a solar module and roof tile or slate, as indicated in recital (66) above. A direct comparison of prices is therefore not meaningful, as the added functionality naturally leads to higher prices. (70) In response to this argument, the interested party argued that on the basis of this argumentation, it would be impossible to ever invoke price differences as an additional indicator warranting the exclusion from the product scope. However, this interpretation is too far-reaching. What is said in the previous recital is merely that in this particular case where the roof-integrated modules combine the functionality of the product concerned plus another product (in this case roof tile or slate), the price is naturally not meaningful. This in no way means that in other cases the price difference cannot be a useful indicator to establish whether a product should be excluded from the definition of the product concerned. (71) Lastly, the interested party argued that its supplier of roof-integrated solar modules should be granted access to the minimum price undertaking. However, it appears that the Chinese exporter concerned did not co-operate in the investigation, and as a non-cooperating party is not eligible to participate in the undertaking. These request can therefore not be accepted. Conclusion (72) In view of the above, the product scope is definitively defined as crystalline silicon PV modules or panels and cells of the type used in crystalline silicon PV modules or panels, originating in or consigned from the PRC unless they are in transit in the sense of Article V GATT. The cells have a thickness not exceeding 400 micrometres. This product is currently falling within CN codes ex 8501 31 00 , ex 8501 32 00 , ex 8501 33 00 , ex 8501 34 00 , ex 8501 61 20 , ex 8501 61 80 , ex 8501 62 00 , ex 8501 63 00 , ex 8501 64 00 and ex 8541 40 90 . (73) The following product types are excluded from the definition of the product concerned: — solar chargers that consist of less than six cells, are portable and supply electricity to devices or charge batteries, — thin film photovoltaic products, — crystalline silicon photovoltaic products that are permanently integrated into electrical goods, where the function of the electrical goods is other than power generation, and where these electrical goods consume the electricity generated by the integrated crystalline silicon photovoltaic cell(s), — modules or panels with a output voltage not exceeding 50 V DC and a power output not exceeding 50 W solely for direct use as battery chargers in systems with the same voltage and power characteristics. (74) Following the exclusion of wafers, the analysis has been revised by excluding the data and analysis related to wafers, unless otherwise indicated. Given that wafers represented only a small percentage of imports of the product concerned in the Union (around 2 % in value) during the IP, the exclusion of wafers is considered to have a negligible impact if any on the findings. All comments by interested parties have been addressed but any reference to wafers even if raised has been excluded. As a consequence all references and related data concerning wafers reported in the recitals to the provisional Regulation are no longer applicable, even when relevant recitals are confirmed by this Regulation. (75) Consequently, the provisional conclusions, modified as set out under recitals (26) to (74) above, were definitively confirmed. For the purposes of this proceeding and in accordance with consistent practice, it was therefore considered that all types of the product concerned should be regarded as forming one single product. DUMPINGThe PRCMarket Economy Treatment (MET) (76) Following the provisional disclosure, interested parties claimed that the MET determination was made out of time, i.e. after the three-month period laid down in Article 2(7)(c) of the basic Regulation and that the investigation therefore should be terminated without delay. (77) In this respect, these parties argued that the amendment of the basic Regulation ( 13 ) purportedly extending the deadline to make the MET determination to eight months only entered into force after the expiry of previously applicable three months deadline. The amendment would apply only to future investigations and to pending investigations where the deadline for making the MET determination had not yet lapsed at that time. (78) However, Article 2 of the amendment of the basic Regulation clearly states that ‘this Regulation shall apply to all new and to all pending investigations as from 15 December 2012’. This Article, or indeed the whole Regulation, does not contain any reference to the restriction ‘where the deadline for making the MET determination had not yet lapsed’ claimed by the interested parties. Therefore, this argument cannot be accepted. (79) Following final disclosure, several interested parties re-iterated their argument that the MET determination was made out of time, without challenging the fact that the amendment of the basic Regulation referred to in recital (78) above applies to ‘all pending investigations’, which includes the present investigation. It is therefore finally concluded that the MET determination was not made out of time. (80) Following final disclosure, one exporter claimed that MET should not have been denied because three companies which ceased operations during 2011 did not have one clear set of basic accounting records. In particular, it was questioned pursuant to which accounting standard a company which ceased operations should nevertheless prepare such accounting records. (81) In this respect it is noted that the accounting standards do not define which companies are required to prepare financial statements — accounting standards define how these statements have to be prepared. In the case of The PRC, it is the ‘Accounting Standard for Business Enterprises: Basic Standard’ which defines in its Article 4 that ‘an enterprise shall prepare financial reports’. This is a mandatory obligation, and there is no exemption for companies which ceased operation. (82) Furthermore, even though these companies ceased operation, they still owned assets (including land, buildings, machinery and stocks) and liabilities and did exist as legal entities at least until early 2013. It is therefore considered that these companies were obliged to publish accounting records for the year 2011, and the lack of these accounting records constitutes a violation of criterion 2. (83) Following final disclosure, exporters also claimed that the benefits received from preferential tax regime(s) and grants do not represent a significant proportion of their turnover, which is allegedly confirmed by the parallel anti-subsidy investigation. (84) In this respect, it is recalled that this argument was already addressed in recital (65) to the provisional Regulation. It was stressed that in particular due to the nature of this advantage, the absolute benefit received during the IP is irrelevant for assessing whether the distortion is ‘significant’. This claim is therefore rejected. (85) In the absence of other comments regarding the Market Economy Treatment, all determinations in recitals (50) to (69) to the provisional Regulation are confirmed. Individual examination (86) As indicated in recital (70) to the provisional Regulation, 18 cooperating exporting producers or groups of exporting producers not selected in the sample submitted claims for individual examination pursuant to Article 17(3) of the basic Regulation. In the present case, the sample already consisted of seven groups of companies, which typically consist of a number of exporting producers, related traders and related importers in the Union and third countries. An individual examination of 18 additional (groups of) exporting producers, in addition to the seven groups of exporting producers included in the sample, would be unduly burdensome and would prevent completion of the investigation in good time. (87) In the absence of other comments regarding individual examination, all determinations in recitals (70) to (71) to the provisional Regulation are confirmed. Analogue Country (88) Interested parties noted that India is not a suitable analogue country due to local content provisions for projects of the ‘Jawaharlal Nehru National Solar Mission’ (‘JNNSM’). One party alleged that a 75 % local content is required, while another party alleged that Indian producers can charge higher prices for 100 % domestically produced modules. They further alleged that such requirements significantly increase prices of local products. In support of this claim, an Indian press article was submitted ( 14 ). However, this article was published almost one year after the end of the IP, and no proof for its impact during the IP has been provided. (89) However, the same press article reported that the Indian solar industry faces ‘stiff competition from western and Chinese manufacturers’. This is supported by the steady increase of imports into India, as stated in recital (92) below. While the local content requirements may indeed have a certain impact on the Indian domestic market, a clear conclusion can nevertheless be drawn that the Indian market is a competitive one, where numerous Indian and foreign companies effectively compete with each other. (90) In addition, according to information published by the JRC ( 15 ), the majority of the JNNSM projects will come on-line from 2015 onwards. Indeed, the target for grid-connected PV systems under the JNNSM for 2012 was only 50 MW compared to a total grid-connected capacity in India exceeding 1 GW already in June 2012. This shows that during the IP the importance of the JNNSM on total solar installations in India was below 5 % and therefore the impact of the JNNSM and its local content requirements, if they already existed during the IP, a fact that has not been established by the interested parties, was at best very limited. The majority of the installations during the IP were in the state of Gujarat (about 65 %), driven by state support policies. (91) Interested parties claimed that the Indian market was de facto protected during the IP from imports from a variety of sources, including the PRC, because the initiation of an anti-dumping investigation was looming since the beginning of 2012. Indeed, India initiated an anti-dumping investigation against imports of solar cells and modules from the PRC, Malaysia, Taiwan and the USA on 23 November 2012, i.e. only almost five months after the end of the IP. (92) However, this allegation is not supported by the development of imports of solar cells and modules reported by the Indian trade statistics ( 16 ):



Values in million USD April 2010 — March 2011 April 2011 — March 2012 April 2012 — March 2013 PRC 77,33 577,24 371,72 Index 100 746 481 Total 252,63 1 348,48 827,07 Index 100 534 327 (93) The table above shows that imports of solar cells and modules dramatically increased by more than 600 % for the PRC and more than 400 % overall between 2010/11 and 2011/12. Subsequently, the import values somewhat decreased, but so did prices for solar cells and modules. Indeed, the drop in import values between 2011/12 and 2012/13 is in line with the price decrease reported by specialized consultancies such as pvXchange for the same period, leading to the conclusion that the import volumes remained rather stable between 2011/12 and 2012/13. It is therefore concluded that the Indian market was not de facto protected during the IP from imports from a variety of sources, including the PRC. (94) Following final disclosure, the Government of China argued that the USA have requested consultations with India under the WTO dispute settlement procedures concerning the local content requirements of the JNNSM on 6 February 2013. The effect of these local content rules, in combination with the anti-dumping investigation mentioned in (91) above, allegedly led to a decrease of 38 % in value terms in April 2012 — March 2013 compared to the previous year, in contrast to the increase in previous years. (95) In this respect, it is noted that the decrease in value terms is due to a decrease in prices rather than import volumes. Following definitive disclosure, an interested party provided information on the development of imports of solar cells and modules on the Indian market in terms of volume between 2010 and March 2013. This data shows a steady increase if imports of solar modules and cells into the Indian market in terms of volume. It is therefore concluded that the Indian market was not de facto protected due to a looming anti-dumping investigation, and the claimed, but not proven, in any event at the very best minor effects of the local content requirements under the JNNSM mentioned in recital (90) above did not prevent a steady increase in imports in terms of volume. (96) In addition, it is pointed out that the period of April 2012 — March 2013 showing the alleged effects of the JNNSM on imports into India is predominantly after the IP. Any possible impact of this alleged decrease on the IP can therefore only be minor. (97) One interested party alleged that Tata Power Solar (‘Tata’) only recently entered the market, and is therefore not a suitable analogue country producer. In this respect, it is noted that the company, previously ‘Tata BP Solar’, is producing solar modules since 1989 and can therefore not be considered having entered the market only recently. Indeed, according to information provided by another interested party, Tata entered the market significantly earlier than the five largest sampled Chinese exporters. (98) One interested party claimed that Taiwan would be a more suitable analogue country than India, since the size of the Taiwanese companies is more comparable to the size of the Chinese exporters, and there is also co-operation from Taiwanese producers. Also, other interested parties questioned whether India would be a reasonable analogue country given the comparably small size of Tata without proposing a more suitable alternative. (99) Indeed, Taiwanese companies co-operated. One company fully co-operated, while another company only co-operated partially. The sole fully co-operating Taiwanese company is however smaller than Tata, in particular in terms of sales and production of modules which account for around 90 % of the sales of the product concerned, where Tata sells substantially more than the Taiwanese company who only has insignificant sales in this respect, as mentioned in recital (76) to the provisional Regulation. Following definitive disclosure, one exporter asked whether the partially co-operating Taiwanese company was contacted to furnish the missing information. In this respect it is referred to recital (76) to the provisional Regulation, which clarifies that Taiwan could not be used as analogue country since the co-operating Taiwanese companies almost exclusively produced cells, while the Chinese exports are mainly in the form of modules. This also applies to the partly co-operating Taiwanese producer. Since this producer was already considered unsuitable for this reason, it was not considered appropriate to request additional information from this company. (100) The same interested party claimed that the almost complete lack of sales of modules does not disqualify Taiwan as analogue country per se, since the processing costs from making cells into modules can be established without much difficulty. This is, however, not supported by the facts of the investigation. Producing a module from cells requires multiple steps of production, during which a significant part of the value added of the module is created. As indicated in recital (137) to the provisional Regulation, during the IP the average price difference between cells and modules was EUR 555,92 or 54 %, while the average cost difference amounted to EUR 377,99 or 34 %. This would mean that a significant share of a possible Taiwanese Normal Value for modules would have to be based on adjustments for processing costs, which cannot be considered more reasonable than a country where the Normal Value can be based on domestic sales prices for most of the product concerned. It is therefore considered that India has been selected as analogue country in a reasonable manner, taking account of the available reliable information. (101) Another interested party argued that no reasons were given why the USA was not considered an appropriate analogue country. In this respect reference is made to recital (74) to the provisional Regulation, where it is clearly stated ‘that the USA would not be a suitable analogue country, mainly due to the fact that the US market was protected from Chinese imports during part of the IP by anti-dumping and anti-subsidy measures.’ Since no comments on the protection of the US market as such were received, the position in this respect remains unchanged. (102) Interested parties argued that the result of the dumping calculation is distorted due to differences in economies of scale between the Chinese producers and the Indian producer. It was therefore checked whether a correlation between a company's production volume and its dumping margin indeed exists. (103) Of the seven company groups included in the sample, there are two medium sized company groups (Jinzhou Yangguang and Delsolar) and five large company groups (JingAo, LDK, Suntech, Trina and Yingli). Of the medium sized companies, Jinzhou Yangguang has the lowest margin, while Delsolar has the highest margin. The five larger companies are in-between. This clearly demonstrates the absence of any correlation between economies of scale and dumping margins. Therefore, it is considered that the dumping calculation is not distorted due to differences in economies of scale between the Chinese producers and the Indian producer. (104) Following definitive disclosure, interested parties claimed that the absence of any correlation between economies of scale and dumping margins does not show that there is no impact of economies of scale and the comparability of prices. In a situation where the dumping margin is based on an identical Normal Value for all exporters as in the present case, the dumping margin is mainly driven by the export prices. The absence of any correlation between economies of scale and dumping margin therefore equally demonstrates the absence of any correlation between economies of scale and sales prices. It is therefore concluded that differences in economies of scale do not affect the comparability of prices in the present case. (105) One interested party claimed that the analogue country producer had extremely high domestic sales prices, which allegedly are significantly higher than the sales prices of the Union industry, since the dumping margin significantly exceeds the undercutting margin. This claim was made by comparing Indian Normal Values with the sales prices of the Union industry. This comparison is, however, flawed since the Indian Normal Value is based on the profitable sales only. Especially in a situation where the Union industry is loss-making, it is not surprising that profitable prices in India exceed the average Union industry price. Therefore, the fact that the Indian Normal Value exceeds average Union industry prices does not demonstrate that the choice of India as analogue country is unreasonable. (106) One interested party argued that Tata's prices are distorted, since it is related to Tata Power, a utility company. This allegedly allows Tata to charge higher prices in the areas served by Tata Power. However, no supporting evidence was provided, and no quantification of this alleged effect was provided either. This claim could therefore not be accepted. (107) Following definitive disclosure, one exporter argued that Tata is an uncompetitive company with high production costs and sales prices, which was allegedly the reason why BP Solar withdrew from the joint venture in December 2011. In support of this, a press article is quoted, stating that ‘BP's exit from the solar industry after some four decades shows how competitive and crowded the solar market has become.’ However, this article did not single out Tata as an uncompetitive company, it addressed the situation on the market for solar panels in general, speaking about ‘cutthroat competition that marks an industry’, and that ‘many companies worldwide have closed factories, laid off hundreds of workers and filed for bankruptcies’. This press article can therefore not demonstrate that Tata is an uncompetitive company with high production costs and sales prices. (108) Following disclosure, one exporter argued that Tata was not included as part of the Indian domestic industry in the on-going Indian anti-dumping investigation mentioned in recital (91) above, due to its significant imports of cells. While it is confirmed that Tata is indeed not part of the Indian domestic industry in the on-going Indian anti-dumping investigation, this does not automatically mean than Tata is not a suitable analogue country producer. The Normal Value was based exclusively on cells and modules produced by Tata in India, and not on imported goods. The fact that imported components were used in the production of some of the products does not mean that the resulting Normal Value is not representative for India, even more so since it is predominantly based on sales prices and not on costs. (109) The Government of China argued that Tata's sales of modules allegedly only represent only 0,3 % of the Chinese exports to the EU and cannot be considered representative, referring to the Detlef Nölle ( 17 ) judgment of the Court. In that case, the Court considered that when the total production in a country is only 1,25 % of the export volume to the EU, this amounts to an indication that the market considered is not very representative. In the present case, the Government of China did not compare the total production in India with the total Chinese exports, but only the production of one Indian company with the total exports of all Chinese exporters. This comparison is however flawed, since in a competitive market with multiple players the quantities relating to only one producer are not indicative of the representativity of the market as a whole. In addition, it is not the comparison which was made in the Detlef Nölle case either, where the total production of the country was compared with total exports. According to information provided by the China Chamber of Commerce for Import and Export of Machinery (‘CCCME’), production in India was forecasted to exceed 2 GW before the end of 2012, i.e. shortly after the end of the IP. Such a production would be equal to 14 % of Chinese exports to the EU, well above the 5 % indicative threshold mentioned in the Detlef Nölle judgment. (110) Following disclosure, one interested party referred to the fact that Tata lacks upstream integration and has to source wafers from third parties. Allegedly, this lack of upstream vertical integration leads to an increase of costs compared to vertically integrated Chinese producers. This claim was however not substantiated. In particular, the total cost of Tata would only be higher if their purchase price for wafers would exceed the cost of production of a wafer, which is uncertain since many companies in the solar business have been loss-making during the IP. Furthermore, even large vertically integrated Chinese producers often purchased significant quantities of wafers from independent suppliers, which supports the conclusion that the lack of vertical integration into wafers does not necessarily lead to higher costs for modules and cells. (111) One interested party argued that the analogue country is uncompetitive. This claim is supported by the fact that the production of solar cells in India is at a 5-year low in 2013. The report quoted by that interested party however showed during the IP the Indian cell production was still at a high level close to the peak reported. The significant decrease in production occurred after the IP, and therefore had no impact on the results of the investigation. (112) Another argument brought forward to support the claim that the analogue country is uncompetitive is the anti-dumping investigation mentioned in recital (91) above. The Institutions observe that that investigation is still on-going, and that therefore, no conclusions can be drawn from it. In general, anti-dumping investigations are not an indication for a lack of competitiveness, but an indication that the domestic industry considers that it is subject to unfair trade practices from competitors located in third countries. (113) On balance, the Commission considers that the choice of India as an analogue country is not unreasonable. (114) In the absence of other comments regarding the Analogue Country, all determinations in recitals (72) to (77) to the provisional Regulation are confirmed. Normal Value (115) Following the provisional disclosure, one interested party commented that the Indian companies mainly sold off-grid modules, which have higher prices and costs than the grid-connected modules sold by the Chinese exporters. It was further claimed that off-grid modules typically have a lower power output than grid-connected modules. (116) In this respect, it is noted that different Normal Values were established for ‘standard-sized’ modules with more than 36 cells which are typically grid connected and smaller modules with 36 cells or less which are typically used off-grid. It is therefore considered that an appropriate Normal Value is established for all product types, including off-grid modules and grid-connected modules. (117) Another interested party stated that Tata is also active as a project developer, and the sales of this company are therefore not comparable with sales of modules only by Chinese exporting producers. In this respect it is noted that the comparison between domestic Indian prices and Chinese export prices were exclusively made for sales of modules, and sales of complete projects or integrated solutions were not used to establish Normal Value as they were not considered to be comparable. (118) In the absence of other comments regarding Normal Value, all determinations in recitals (78) to (86) to the provisional Regulation are confirmed. Export price (119) Following the provisional disclosure, some of the sampled exporters commented on minor issues concerning the export price used to establish the dumping margin. Where warranted, the comments were taken into account and led to a slight revision of the dumping margin of the companies concerned. (120) In the absence of any other comments regarding export price, all determinations in recitals (87) to (89) to the provisional Regulation are confirmed. Comparison (121) Following the provisional disclosure, some of the sampled exporters commented on minor issues concerning the allowances used to compare export prices. Where warranted, the comments were taken into account and led to a slight revision of the dumping margin of the companies concerned. (122) Following the provisional disclosure, a clerical error resulting in an incorrect adjustment to Normal Value for domestic freight was discovered. This error was corrected and led to a slight decrease in dumping margins. (123) Following disclosure, one interested party claimed that an adjustment for level of trade may be warranted, since the party does not sell directly to installers, but to resellers and distributors. The party requested detailed information on the sales channels of the analogue country producer, which could not be provided to protect confidential information. As an alternative, the customer base of the analogue country producer was categorized into different categories according to sales volume, which showed that a level of trade adjustment was not warranted. (124) In response to this analysis, the interested party admitted that a difference in sales quantities would result in price differences, but maintained their argument that they would allegedly charge higher prices to installers than distributors/resellers even if the installer would buy a similar quantity than the distributor/reseller. However, this claim was not substantiated and could therefore not be taken into account. (125) In the absence of any other comment regarding export price, all determinations in recitals (90) to (92) to the provisional Regulation are confirmed. Dumping margins (126) One sampled exporting producer requested a full disclosure of its dumping calculations, claiming that it could otherwise not comment on the accuracy thereof. As this company was not granted MET, its normal value was based on data from India as analogue country. Given that only one producer in the analogue country fully co-operated in the investigation, information from the analogue country cannot be disclosed on a product type level in order to protect confidential information. Therefore, the claim needs to be rejected. (127) For the sampled companies, the weighted average normal value of each type of the like product established for the analogue country was compared with the weighted average export price of the corresponding type of the product concerned, as provided for in Article 2(11) and (12) of the basic Regulation. (128) The weighted average dumping margin of the cooperating exporting producers not included in the sample was calculated in accordance with the provisions of Article 9(6) of the basic Regulation. Accordingly, that margin was established on the basis of the margins established for the sampled exporting producers. (129) On that basis, the definitive dumping margin for the cooperating companies not included in the sample was established at 88,1 %. (130) With regard to all other exporting producers in the PRC, the dumping margins were established on the basis of the facts available in accordance with Article 18 of the basic Regulation. To that end the level of cooperation was first established by comparing the volume of exports to the Union reported by the cooperating exporting producers with the volume of Chinese exports, as established in recital (167). (131) As the cooperation accounted for more than 80 % of total Chinese exports to the Union, the level of cooperation can be considered high. Since there was no reason to believe that any exporting producer deliberately abstained from cooperating, the residual dumping margin was set at the level of the sampled company with the highest dumping margin. This was considered appropriate since there were no indications that the non- cooperating companies were dumping at a lower level, and in order to ensure the effectiveness of any measure. (132) On this basis the definitive dumping margins expressed as a percentage of the CIF Union frontier price, duty unpaid, are as follows:



Company Dumping Margin Changzhou Trina Solar Energy Co. Ltd Trina Solar (Changzhou) Science & Technology Co. Ltd Changzhou Youze Technology Co. Ltd Trina Solar Energy (Shanghai) Co. Ltd Yancheng Trina Solar Energy Technology Co. Ltd 90,3 % Delsolar (Wujiang) Ltd, 111,5 % Jiangxi LDK Solar Hi-Tech Co. Ltd LDK Solar Hi-Tech (Hefei) Co. Ltd LDK Solar Hi-Tech (Nanchang) Co. Ltd LDK Solar Hi-Tech (Suzhou) Co. Ltd 91,9 % JingAo Solar Co. Ltd Shanghai JA Solar Technology Co. Ltd JA Solar Technology Yangzhou Co. Ltd Hefei JA Solar Technology Co. Ltd Shanghai JA Solar PV Technology Co. Ltd 97,5 % Jinzhou Yangguang Energy Co. Ltd Jinzhou Huachang Photovoltaic Technology Co. Ltd Jinzhou Jinmao Photovoltaic Technology Co. Ltd Jinzhou Rixin Silicon Materials Co. Ltd Jinzhou Youhua Silicon Materials Co. Ltd 53,8 % Wuxi Suntech Power Co. Ltd Suntech Power Co. Ltd Wuxi Sunshine Power Co. Ltd Luoyang Suntech Power Co. Ltd Zhenjiang Ren De New Energy Science Technology Co. Ltd Zhenjiang Rietech New Energy Science Technology Co. Ltd 73,2 % Yingli Energy (China) Co. Ltd Baoding Tianwei Yingli New Energy Resources Co. Ltd Hainan Yingli New Energy Resources Co. Ltd Hengshui Yingli New Energy Resources Co. Ltd Tianjin Yingli New Energy Resources Co. Ltd Lixian Yingli New Energy Resources Co. Ltd Baoding Jiasheng Photovoltaic Technology Co. Ltd Beijing Tianneng Yingli New Energy Resources Co. Ltd Yingli Energy (Beijing) Co. Ltd 93,3 % Other cooperating companies (Annex I, Annex II) 88,1 % All other companies 111,5 % INJURYDefinition of the Union industry and Union production (133) The like product was manufactured by around 215 producers in the Union. The Institutions have verified claims by interested parties that there was a higher number; this verification has revealed that the alleged additional producers were in reality mostly exporting producers, importers related to those, distributors and installers. (134) Following the provisional disclosure, several parties contested the fact that data provided by Europressedienst, an independent consultancy firm (‘the consultant’), were used to determine, inter alia, Union production, Union production capacity as well as other macroeconomic injury indicators concerning the Union industry and import data. These parties questioned the independence of the consultant alleging that it was linked to the complainant. They also requested clarifications on what basis the consultant was selected by the Commission and questioned its expertise in collecting economic data related to the PV sector. In this regard, it was claimed that the Commission should have based its findings on data from other available sources, in particular known research institutes. Lastly, a reference to Best Practices for the submission of economic evidence and data collection in cases concerning the application of Articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU) and in merger cases was made by AFASE to contest the reliability of the data submitted by the consultant. (135) As regards the alleged links between the consultant and the complainant, the relevant interested parties did not submit any evidence showing the existence of such links. Likewise, the investigation did not bring into light any evidence of a relationship going beyond purely commercial character. Following final disclosure one interested party claimed that there were indications that the prima facie evidence provided by the complainant Union industry in the complaint were based on data provided by the same consultant. Even though it is acknowledged that findings for some indicators were indeed similar to the evidence provided in the complaint that does not necessarily mean that they were established on the basis of one source only. In this regard, the complaint provides the various sources used. (136) As explained in recital (99) to the provisional Regulation, the Commission considered it appropriate to make use of this consultancy in the current investigation, due to the unavailability from other public sources of the necessary macro-economic data covering the total Union market as well as import data. Prior to selecting Europressedienst the Commission assessed the methodology used by the consultant for the collection of the relevant data as well as the consultant's ability to provide the necessary data separately for all product types and for the entire period considered. (137) Furthermore, during the investigation, data provided by the consultant were counter checked when possible with other available sources and were confirmed. In this respect, it is noted that several research companies specialised in collecting PV statistics exist on the market and the figures reported are almost never identical. This is due to the fact that precise figures are difficult to derive for any research institute and therefore the reported PV market indicators will always be based on estimates, independently of the provider of such figure. In this context, the cross-checking exercise carried out by the Commission consisted of comparing the trends of the data received from the consultant with the trends of the same data published by other research companies, the Commission's Joint Research Center (‘JRC’) and the European Photovoltaic Industry Association (‘EPIA’) on the same topics, when available. No significant differences were noticed as a result of the cross-checking exercise as the trends of the indicators for which the cross-checking was done were similar. Provisional findings were therefore not solely based on data provided by the consultant but also on the Commission's own analysis and assessment of these data. In addition, as mentioned above in recital (9), after the imposition of provisional measures a verification visit took place at the premises of the consultant. The Commission carried out the on-the-spot check at the consultant's premises to verify the reliability of the methodology and data supplied. The on-the-spot check was carried out as a follow-up of the cross-checking of the data by the Commission and to obtain further assurance as regards the reliability and quality of the data and related methodology. The on-the-spot verification was considered appropriate in application of the principle of good administration, even if those data were not provided by an interested party but by a consultant. As a result, the Commission was further reassured of the reliability of the data provided by the consultant. (138) One party claimed that the methodology of cross checking used by the Commission was not explained in sufficient detail and requested that the other sources used for the cross checking should be disclosed. This party argued further that the methodology used was in any event invalid insofar that only trends of various sources were compared and not absolute values. (139) As far as the other sources used to cross check the data provided by the consultant are concerned, they were the reports published by the 'JRC and EPIA on the same topics. As for the comparison of data with other sources it is noted that they showed not only similar trends but also similar magnitudes. Therefore, it was concluded that the methodology used was appropriate and the claims in this regard were rejected. (140) As to expertise of the consultant, it is noted that its main activity is collecting data linked to the PV sector and developing an up-to-date database of companies active in the PV market. These data are published in specialised photovoltaic magazines and also used by individual companies for which it carries out specialised research. The database developed by Europressedienst is regularly up-dated and re-published. In addition, the consultant has several years of experience in this sector. More precisely, the methodology of the consultant is to collect, cross-check and agglomerate information using various sources available in the market. To this end, it collects the data via standard questionnaires sent to the companies listed in the database or via phone, especially from the Union producers, or during the specialised fairs, notably from producers in third countries. When the information cannot be obtained through the channels just mentioned, Europressedienst checks the financial reports of companies in the photovoltaic sector or co-operates on a freely basis with other research institutes with a view to obtaining or cross-checking the data. It was verified and indeed confirmed that these sources were used by the consultant in its daily activity. In the light of the above, it was considered appropriate to make use of Europressedienst's services in the present investigation and the parties' claims in this respect were therefore rejected. (141) With regard to the Best Practices for the submission of economic evidence issued by the competent service of the Commission (‘the Best Practices’), the following remarks should be made. First of all, it is a document that cannot engage the Commission, as it has not been adopted by the College, but published by the competent service with the purpose of providing recommendations to parties as to how to present economic evidence. Secondly, the Best Practices concern the submission of economic analysis and data used in some competition investigations, pursuant to Article 101 and 102 TFEU and in merger cases. The applicable rules, standards of proof and investigating powers of the Commission in those competition cases cannot be compared to trade defence investigations, to which an entirely different set of rules applies. (142) After the provisional disclosure, several parties contested the methodology used by the consultant claiming that it would not reach recognised scientific standards. However, as mentioned above in recital (137), the methodology was assessed and the resulting data were cross-checked and verified and as a result were considered in line with other published data and therefore reasonably reliable. Specific points raised by the interested parties, mainly AFASE were clarified and made available in the open file of the investigation for inspection by interested parties. (143) The CCCME argued that the methodology of data aggregation was not clarified. This claim was rejected as the relevant information was made available to all interested parties in the investigation file open for inspection by interested parties. (144) After final disclosure, several parties reiterated their concerns on the selection of the consultant by the Commission and on the quality of the data supplied. In this respect it was claimed that the consultant's data can be ordered and purchased on an ad hoc basis to meet the specifically identified requests of potential clients and may therefore not be objective. In addition, CCCME contested that the data collected by the consultant can be considered as positive evidence within the meaning of Article 3(2) of the basic Regulation since the data was to a large extent based on assumptions and estimations. Furthermore, it was claimed that the data supplied were not sufficiently supported by evidence in the file and that they were not of an affirmative, objective and verifiable character. (145) In respect of these claims, reference is made to the recitals (136) to (137) above where additional information was provided regarding the selection of the consultant. In addition, it is noted that the Commission hired the consultant on the basis of the best available information at that moment in time and in full compliance with the Commission Financial Regulation applicable to the procedure. Furthermore, it is recalled that the consultant's capacity to provide all the needed data in due time was of great importance since the Commission was bound to statutory deadlines for the publication of the provisional findings in the on-going investigation. (146) As regards the quality of the data supplied and whether it can be considered as positive evidence in accordance with Article 3(2) of the basic Regulation, as mentioned above in recital (137), the consultant's methodology for collecting the data was examined and it was assessed that it was of satisfactory quality. In addition, as also mentioned above in the same recital, the data supplied by the consultant were cross-checked when possible with other sources and found to be reasonably accurate. Finally, it is noted that the consultant has one database which is up-dated on a regular basis, independently of the clients' needs and requests. The same database is used to aggregate and deliver PV statistics to various clients, and therefore the allegation that data were not objective had to be rejected. (147) After final disclosure, one interested party claimed that the Commission had not disclosed the sources, the methodology used and the companies with which the consultant co-operated to compile the macroeconomic data supplied. Another interested party reiterated that the methodology applied by the consultant suggests inaccurate results. Several interested parties requested further information concerning the methodology used by the consultant such as the average response rates to the questionnaires/interviews, the percentage of data collected through each channel, how these were verified, the approximations/assumptions used to generate the data, the number of companies for which approximations were made, and at least a range of the number of employees of the consultant. (148) In respect of these claims, it is noted that subsequently to the imposition of the provisional measures, the Commission provided interested parties with the methodology and with the sources used by the consultant in aggregating the data and addressed specific questions of the interested parties in this regard following the provisional disclosure. The additional requests for information of the interested parties concerned following final disclosure are considered to be covered by the information made available after the imposition of provisional duties to the extent that the confidentiality limitations allowed it. In addition, it is underlined that the Commission verified on-the-spot the way the data had been collected and aggregated by the consultant and the relevant underlying assumptions for aggregating the data. The results of the verification were satisfactory and the Commission was reassured of the reasonableness of the underlying assumptions and of the quality of the data supplied by the consultant. Furthermore, the parties did not contest the data as such. (149) After final disclosure, another party requested clarifications with regard to the number of Union producers considered by the consultant in its data collection and the overlap between these and the around 215 Union producers known to the Commission. In this respect, it is clarified that the Union producers considered by the consultant are largely the same than the ones known to represent the Union industry in this investigation mentioned in recital (133) above. (150) After final disclosure, one party claimed that the Commission has conducted the injury analysis in an inconsistent manner since it was done separately for modules and cells while the injury and dumping margin calculations had been established as a weighted average for modules and cells together. In this respect, it is noted that while indicators were shown separately for each product type, the conclusions reached for each indicator refer to the product under investigation as a whole. It is also recalled that modules and cells are one single product and therefore the dumping margins and the injury elimination level were established on this basis. Therefore, the claim was rejected. (151) Finally, another party claimed that the calculation of the values of macroeconomic indicators during the IP was wrongly based on a simple average of the years 2011 and 2012 as such methodology would not be objective and would not lead to results reflecting the reality during the IP. It is clarified that a simple average of the data was only used in case where there were similar trends in the periods concerned. In case trends were different, the methodology was adapted accordingly by taking into consideration market reality. The party concerned did not develop to what extend the results of the methodology used would not reflect market reality. These claims were therefore rejected. (152) On the basis of the above, and in absence of any other comments in this respect, the findings in recitals (98) to (101) to the provisional Regulation are confirmed. Determination of the relevant Union market (153) Several parties argued that the injury should have been assessed separately for the captive market and for the free market. One party argued that data relating to cells destined for captive use should have been excluded from the injury assessment on the grounds that they were not affected by the dumped imports. (154) As mentioned in recital (105) to the provisional Regulation consumption, sales volume, production, production capacity, capacity utilisation, growth, investments, stocks, employment, productivity, cash flow, return on investment, ability to raise capital and magnitude of the dumping margin should be examined referring to the total activity of the Union industry, i.e. including captive use, as the production destined for the captive market was equally affected by the competition of imports from the country concerned. (155) Thus, the investigation has shown that vertically integrated Union producers were forced to import dumped products (cells) and to cease production of these products at cost above the import price, as a consequence of the price pressure exerted by the dumped imports. Furthermore, the investigation also revealed that the free market and the captive market displayed similar trends in prices, which also showed that they were equally affected by the imports concerned. (156) After final disclosure, several parties reiterated that the Commission failed to provide an adequate and reasoned analysis of the captive market or why a separate analysis had not been carried out. One party claimed that no information was provided about the significance of the Union production destined for captive use. In addition, it was claimed that recital (106) to the provisional Regulation concluding that prices in the captive market did not always reflect market prices, contradicted the conclusions set out in recital (155) above that the free market and captive market displayed similar trends in prices. (157) It is firstly noted that recital (105) to the provisional Regulation sets out the reasons as to why it was considered appropriate to examine injury indicators (except for profitability) referring to the total activity of the Union industry including captive use. In this regard it is recalled, as set out in the same recital, that the investigation revealed that the production destined for captive use was equally affected by the competition of the imports from the PRC, which as such was not contested by the interested parties concerned. Therefore, the claim that no explanations were given as to why no separate analysis took place had to be rejected. Likewise, as it follows from this conclusion, it had also to be rejected that such separate analysis of the captive market should have taken place. (158) Secondly, while on the basis of the above the significance of the Union production destined for captive use was not considered an essential element, it is noted that the Union production of cells destined for captive use represented about half of the total production in the IP. Finally, it is clarified that the fact that prices in the captive market do not reflect the prices in the free market is not necessarily contradicting the fact that both prices followed the same trends, as they may still be at different levels or price movements may be at a higher or lower degree and thus depicting a different picture. On the basis of the above, the claims concerning the captive market were rejected. (159) The parties concerned did not provide any information which could have devaluated the findings concerning the determination of the Union market. On these grounds, the claims in this respect were rejected and the findings as set out in recitals (102) to (106) to the provisional Regulation are confirmed. Union consumption (160) One interested party argued that data concerning the Union consumption of the product under investigation vary significantly, depending on the source used. This party argued that reliable data can only be established on the basis of the information gathered from specialised institutions or research centres. In view of the explanations and conclusions reached in the recitals (134) to (152) above, concerning the reliability of the data provided by the consultant used in the investigation, this argument was rejected. (161) The same party argued that Union consumption should not be established by merely adding up available module production capacities in the Union and that the module consumption of the Union industry's own projects should be deducted therefrom. This argument was rejected, as consumption of modules was established on the basis of newly installed capacities in the Union. This is a common practice for determining the module consumption. For cells the consumption was determined on the basis of the Union production of modules. (162) Another party argued that that the methodology described by the consultant admits the difficulty to establish reliable consumption figures. It was further argued that import data as well as export sales from the Union industry were either based on unverifiable estimations or incomplete data and that the cross checking of the Commission was not sufficient to allow the conclusion that those data were indeed reliable and accurate. (163) As already mentioned above in recitals (136) and (137) above the quality of the data and the methodologies used to collect them were verified by the Commission during an on-spot visit on the basis of which it was considered that the methodologies used were appropriate and the results accurate and reasonably reliable. This claim was therefore rejected. (164) On this basis, and in the absence of any other comments with respect to the Union consumption, recitals (107) to (109) to the provisional Regulation are confirmed. Imports from the country concernedVolume and market share of the imports from the country concerned (165) One interested party argued that data concerning import volumes of the product under investigation vary significantly, depending the source used. This party argued that reliable data can only be established on the basis of the information gathered from specialised institutions or research centres. In view of the explanations and conclusions reached in the recitals (134) to (152) above, concerning the reliability of the data provided by the consultant used in the investigation, this argument was rejected. (166) After final disclosure, one interested party contested the methodology to determine the total import value from the PRC claiming that it had been based on transactions made at CIF level duty unpaid and it is therefore doubtful whether these transactions had been destined for Union consumption. In respect of this claim, it is clarified that the total import value from PRC as provided by the consultant had not been used in the provisional and definitive findings and that only import volumes and import prices were determined during the investigation as shown in recitals (110) to (113) to the provisional Regulation. As the methodology to determine import prices was not contested as such by the interested party concerned reference is made to the relevant findings in recital (113) to (117) to the provisional Regulation and recitals (168) to (176) below. Therefore, the above claim was rejected. (167) On this basis, and in the absence of any other comments with respect to imports of the product concerned from the PRC, recitals (110) to (112) to the provisional Regulation are confirmed. Prices of imports and price undercutting (168) One cooperating unrelated importer claimed that import prices should have been established on the basis of its imports of the product concerned in the Union. However, the data provided by this importer during the investigation only represented a fraction of the total imports in the Union and no meaningful conclusions could be drawn as to the average import price of all imports from the PRC during the whole period under consideration covering several years. Therefore, this claim was rejected. (169) Another party claimed that the methodology to determine the prices was not explained, in particular as to how the data of various sources had been merged and reconciled. In addition it was argued that importation costs should have been based on the verified information collected during the investigation rather than on estimates. (170) It is considered that the methodology made available to interested parties is sufficiently complete to understand as to how figures were established. As far as ‘importation’ cost is concerned, it is clarified that an adjustment was made to on-the-spot-prices to arrive to CIF prices. The estimation made was confirmed with the data collected during the investigation. (171) Following the provisional disclosure, several interested parties requested more details on the price undercutting calculations than those already provided in recital (116) to the provisional Regulation. Insofar as the sensitive nature of this information and the fact that the Union producers had been granted anonymity would allow it, additional information was provided in bilateral disclosures. (172) In line with the decision to exclude wafers from the product scope (see recitals (28) to (32) above), these products were also excluded from the calculation of the price undercutting. Moreover, there were some corrections on the CIF prices provided by the interested parties. As the sample of unrelated importers was revised for the reasons explained in recital (21) the average post-importation costs of the new sample of importers was used, when data was available and complete. (173) The revised price comparison was made on a type-per-type basis for transactions at the same level of trade, duly adjusted where necessary, and after deduction of rebates and discounts. The result of the comparison, when expressed as a percentage of the sampled Union producers' turnover during the IP showed weighted average undercutting margins within the ranges of 19,8 % — 32,1 % for modules, 4 % — 28,5 % for cells and 8 % — 29 % in overall terms for the product concerned. (174) It should be noted that for one sampled exporting producer, a negative price undercutting for cells was established. However, the exported quantities were not significant and can thus not be considered representative. (175) One sampled exporting producer contested the source for the adjustment for mono cells to multi cells, without however substantiating the argument. Indeed no new information or evidence was provided and this claim was therefore rejected. (176) In the absence of any other comments with respect to the prices of imports from PRC and on the price undercutting calculations, recitals (113) to (117) to the provisional Regulation are confirmed as amended above. Economic situation of the Union industryGeneral (177) Some parties questioned the overall reliability of the macroeconomic injury indicators used by the Commission for the purpose of this investigation. They argued that the trends established for a number of these indicators diverged from the trends for the same indicators established for the sampled Union producers. Particular reference was made to Union production, productivity, sales, average labour costs and employment. (178) As mentioned in recital (121) to the provisional Regulation the macroeconomic indicators were established in relation to all producers in the Union. In case the same data are compiled in relation to individual Union producers or a group of Union producers (i.e. the sampled Union producers), the trends are not necessarily identical, as e.g. t