Notice of initiation of an expiry review of the countervailing measures applicable to imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People's Republic of China
Date: 2015-12-05
Institutions: European Commission
Subjects: China, anti-dumping measure, countervailing charge, import (EU), originating product, photovoltaic cell, semi-metal








C_2015405EN.01002001.xml










5.12.2015   


EN


Official Journal of the European Union


C 405/20





Notice of initiation of an expiry review of the countervailing measures applicable to imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People's Republic of China
(2015/C 405/09)
Following the publication of a Notice of impending expiry (1) of the countervailing measures in force on the imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People's Republic of China, the European Commission (‘the Commission’) has received a request for review pursuant to Article 18 of Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Community (2) (‘the basic Regulation’).
1.   Request for review

The request was lodged on 4 September 2015 by EU ProSun (‘the applicant’) on behalf of producers representing more than 25 % of the total Union production of crystalline silicon photovoltaic modules and key components (i.e. cells).
2.   Product under review

The product subject to this review is crystalline silicon photovoltaic modules or panels and cells of the type used in crystalline silicon photovoltaic modules or panels (the cells have a thickness not exceeding 400 micrometres) (‘the product under review’), 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 (TARIC codes 8501310081, 8501310089, 8501320041, 8501320049, 8501330061, 8501330069, 8501340041, 8501340049, 8501612041, 8501612049, 8501618041, 8501618049, 8501620061, 8501620069, 8501630041, 8501630049, 8501640041, 8501640049, 8541409021, 8541409029, 8541409031 and 8541409039) and originating in or consigned from the People's Republic of China, unless they are in transit in the sense of Article V GATT.
The following product types are excluded from the definition of the product under review:






—


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.




3.   Existing measures

The measures currently in force are a definitive countervailing duty imposed by Council Implementing Regulation (EU) No 1239/2013 (3).
A group of exporting producers gave a mandate to the China Chamber of Commerce for Import and Export of Machinery and Electronic Products (‘CCCME’) to submit a price undertaking on their behalf to the Commission. By Commission Decision 2013/423/EU (4), the Commission accepted that price undertaking. Following the notification of an amended version of the price undertaking by a group of exporting producers together with the CCCME, the Commission confirmed by Implementing Decision 2013/707/EU (5) the acceptance of the price undertaking as amended (‘the undertaking’) for the period of application of definitive measures.
4.   Grounds for the review

The request is based on the grounds that the expiry of the measures would be likely to result in continuation of subsidisation and recurrence of injury to the Union industry.
4.1.   
Allegation of likelihood of continuation of subsidisation


The applicant has provided sufficient evidence that the producers of the product under review in the People's Republic of China have benefitted and are likely to continue to benefit from a number of subsidies granted by the Government of the People's Republic of China and regional and local governments in the People's Republic of China.
The subsidy practices consist, inter alia, of (1) direct transfer of funds and potential direct transfers of funds or liabilities, for example various grants, preferential loans and directed credits by state-owned banks, export credits and export guarantees and insurances; (2) government revenue forgone or not collected, for example income tax reductions and exemptions, import tariff rebates and VAT exemptions and rebates; (3) government provision of goods or services other than general infrastructure, for example government provision of land, power, water and raw materials for production of the product under review; and (4) payments to a funding mechanism or entrustment or direction of a private body to carry out one or more of the functions described in (1), (2) and (3), for example provision of preferential loans by private banks and provision of goods and services (power, water, raw materials) for less than adequate remuneration by private companies which, according to the request, are required to follow government policies and act in the same way as state-owned banks or state-owned enterprises.
The Commission reserves the right to investigate other subsidy practices which may be revealed during the course of the investigation.
The applicants allege that the above schemes are subsidies since they involve a financial contribution from the Government of the People's Republic of China or regional and local governments the People's Republic of China and confer a benefit to exporting producers of the product under review. They are alleged to be specific to an enterprise or industry or group of enterprises or industries and therefore countervailable.
4.2.   
Allegation of likelihood of recurrence of injury


The applicant has also provided prima facie evidence that imports of the product under review from the country concerned to the Union have remained significant in absolute terms and in terms of market shares.
The prima facie evidence provided by the applicant shows likelihood of recurrence of injury, which is likely to be caused by further increase of imports at dumped prices from the country concerned. In this respect the applicant has provided evidence that, should the measures be allowed to lapse, imports of the product under review from the country concerned to the Union are likely to increase due to the existence of unused capacity in the People's Republic of China, because the Union market is still attractive in terms of volume and because other third countries have trade defence measures against the product under review. In addition, in the absence of measures, Chinese export prices would be at a level low enough to injure the EU industry.
5.   Procedure

Having determined, after consulting the Committee established by Article 15(1) of Council Regulation (EC) No 1225/2009 (6), that sufficient evidence exists to justify the initiation of an expiry review, the Commission hereby initiates a review in accordance with Article 18 of the basic Regulation.
The expiry review will determine whether the expiry of the measures would be likely to lead to a continuation or recurrence of subsidisation of the product under review originating in the country concerned and a continuation or recurrence of injury to the Union industry.
The Government of People's Republic of China has been invited for consultations.
5.1.   
Review investigation period and period considered


The investigation of a continuation or recurrence of subsidisation will cover the period from 1 October 2014 to 30 September 2015 (‘the review investigation period’). The examination of trends relevant for the assessment of the likelihood of a continuation or recurrence of injury will cover the period from 1 January 2012 to the end of the investigation period (‘the period considered’).
5.2.   
Procedure for the determination of a likelihood of continuation or recurrence of subsidisation


Exporting producers (7) of the product under review from the country concerned, including those that did not cooperate in the investigation leading to the measures in force, are invited to participate in the Commission investigation.
5.2.1.   Investigating exporting producers

5.2.1.1.   Procedure for selecting exporting producers to be investigated in the People's Republic of China

Sampling
In view of the potentially large number of exporting producers in the People's Republic of China involved in this expiry review and in order to complete the investigation within the statutory time limits, the Commission may limit the exporting producers to be investigated to a reasonable number by selecting a sample (this process is also referred to as ‘sampling’). The sampling will be carried out in accordance with Article 27 of the basic Regulation.
In order to enable the Commission to decide whether sampling is necessary, and if so, to select a sample, all exporting producers, or representatives acting on their behalf, including the ones who did not cooperate in the investigation leading to the measures subject to the present review, are hereby requested to make themselves known to the Commission. These parties have to do so within 15 days of the date of publication of this Notice in the Official Journal of the European Union, unless otherwise specified, by providing the Commission with the information on their company(ies) requested in Annex I to this Notice.
In order to obtain the information it deems necessary for the selection of the sample of exporting producers, the Commission will also contact the authorities of the People's Republic of China and may contact any known associations of exporting producers.
All interested parties wishing to submit any other relevant information regarding the selection of the sample, excluding the information requested above, must do so within 21 days of the publication of this Notice in the Official Journal of the European Union, unless otherwise specified.
If a sample is necessary, the exporting producers will be selected based on the largest representative volume of production, sales or exports which can reasonably be investigated within the time available. All known exporting producers, the authorities of the country concerned and associations of exporting producers will be notified by the Commission, via the authorities of the country concerned if appropriate, of the companies selected to be in the sample.
In order to obtain the information it deems necessary for its investigation with regard to exporting producers, the Commission will send questionnaires to the exporting producers selected to be in the sample, to any known association of exporting producers and to the authorities of the People's Republic of China.
All exporting producers selected to be in the sample, will have to submit a completed questionnaire within 37 days from the date of notification of the sample selection, unless otherwise specified.
Without prejudice to the possible application of Article 28 of the basic Regulation, companies that have agreed to their possible inclusion in the sample but are not selected to be in the sample will be considered to be cooperating (‘non-sampled cooperating exporting producers’).
5.2.2.   Investigating unrelated importers
 (8)
 (9)

Unrelated importers of the product under review from the People's Republic of China to the Union are invited to participate in this investigation.
In view of the potentially large number of unrelated importers involved in this expiry review and in order to complete the investigation within the statutory time limits, the Commission may limit to a reasonable number the unrelated importers that will be investigated by selecting a sample. The sampling will be carried out in accordance with Article 27 of the basic Regulation.
In order to enable the Commission to decide whether sampling is necessary and, if so, to select a sample, all unrelated importers, or representatives acting on their behalf, including the ones who did not cooperate in the investigation leading to the measures subject to the present review, are hereby requested to make themselves known to the Commission. These parties must do so within 15 days of the date of publication of this Notice in the Official Journal of the European Union, unless otherwise specified, by providing the Commission with the information on their company(ies) requested in Annex II to this Notice.
In order to obtain information it deems necessary for the selection of the sample of unrelated importers, the Commission may also contact any known associations of importers.
All interested parties wishing to submit any other relevant information regarding the selection of the sample, excluding the information requested above, must do so within 21 days of the publication of this Notice in the Official Journal of the European Union, unless otherwise specified.
If a sample is necessary, the importers may be selected based on the largest representative volume of sales of the product under review in the Union which can reasonably be investigated within the time available. All known unrelated importers and associations of importers will be notified by the Commission of the companies selected to be in the sample.
In order to obtain the information it deems necessary for its investigation, the Commission will send questionnaires to the sampled unrelated importers and to any known association of importers. These parties must submit a completed questionnaire within 37 days from the date of the notification of the sample selection, unless otherwise specified.
5.3.   
Procedure for the determination of a likelihood of a continuation or recurrence of injury


In order to establish whether there is a likelihood of a continuation or recurrence of injury to the Union industry, Union producers of the product under review are invited to participate in the Commission investigation.
5.3.1.   Investigating Union producers

In view of the large number of Union producers involved in this expiry review and in order to complete the investigation within the statutory time limits, the Commission has decided to limit to a reasonable number the Union producers that will be investigated by selecting a sample. The sampling is carried out in accordance with Article 27 of the basic Regulation.
The Commission has provisionally selected a sample of Union producers. Details can be found in the file for inspection by interested parties. Interested parties are hereby invited to consult the file (for this they should contact the Commission using the contact details provided in section 5.7 below). Other Union producers, or representatives acting on their behalf, including Union producers who did not cooperate in the investigation(s) leading to the measures in force, that consider that there are reasons why they should be included in the sample must contact the Commission within 15 days of the date of publication of this Notice in the Official Journal of the European Union.

All interested parties wishing to submit any other relevant information regarding the selection of the sample must do so within 21 days of the publication of this Notice in the Official Journal of the European Union, unless otherwise specified.
All known Union producers and/or associations of Union producers will be notified by the Commission of the companies finally selected to be in the sample.
In order to obtain the information it deems necessary for its investigation, the Commission will send questionnaires to the sampled Union producers and to any known associations of Union producers. These parties must submit a completed questionnaire within 37 days from the date of the notification of the sample selection, unless otherwise specified.
5.4.   
Procedure for the assessment of Union interest


Should the likelihood of continuation or recurrence of subsidisation and injury be confirmed, a decision will be reached, pursuant to Article 31 of the basic Regulation, as to whether maintaining the countervailing measures would not be against the Union interest. Union producers, importers and their representative associations, users and their representative associations, and representative consumer organisations are invited to make themselves known within 15 days of the date of publication of this Notice in the Official Journal of the European Union, unless otherwise specified. In order to participate in the investigation, the representative consumer organisations have to demonstrate, within the same deadline, that there is an objective link between their activities and the product under review.
Parties that make themselves known within the above deadline may provide the Commission with information on the Union interest within 37 days of the date of publication of this Notice in the Official Journal of the European Union, unless otherwise specified. This information may be provided either in a free format or by completing a questionnaire prepared by the Commission. In any case, information submitted pursuant to Article 21 will only be taken into account if supported by factual evidence at the time of submission.
5.5.   
Other written submissions


Subject to the provisions of this Notice, all interested parties are hereby invited to make their views known, submit information and provide supporting evidence. Unless otherwise specified, this information and supporting evidence must reach the Commission within 37 days of the date of publication of this Notice in the Official Journal of the European Union.
5.6.   
Possibility to be heard by the Commission investigation services


All interested parties may request to be heard by the Commission investigation services. Any request to be heard must be made in writing and must specify the reasons for the request. For hearings on issues pertaining to the initial stage of the investigation the request must be submitted within 15 days of the date of publication of this Notice in the Official Journal of the European Union. Thereafter, a request to be heard must be submitted within the specific deadlines set by the Commission in its communication with the parties.
5.7.   
Instructions for making written submissions and sending completed questionnaires and correspondence


Information submitted to the Commission for the purpose of trade defence investigations shall be free from copyrights. Interested parties, before submitting to the Commission information and/or data which is subject to third party copyrights, must request specific permission to the copyright holder explicitly allowing (a) the Commission to use the information and data for the purpose of this trade defence proceeding and (b) to provide the information and/or data to interested parties to this investigation in a form that allows them to exercise their rights of defence.
All written submissions, including the information requested in this Notice, completed questionnaires and correspondence provided by interested parties for which confidential treatment is requested shall be labelled ‘Limited’ (10).
Interested parties providing ‘Limited’ information are required to furnish non-confidential summaries of it pursuant to Article 29(2) of the basic Regulation, which will be labelled ‘For inspection by interested parties’. These summaries must be sufficiently detailed to permit a reasonable understanding of the substance of the information submitted in confidence. If an interested party providing confidential information does not furnish a non-confidential summary of it in the requested format and quality, such information may be disregarded.
Interested parties are invited to make all submissions and requests by e-mail including scanned powers of attorney and certification sheets, with the exception of voluminous replies which shall be submitted on a CD-ROM or DVD by hand or by registered mail. By using e-mail, interested parties express their agreement with the rules applicable to electronic submissions contained in the document ‘CORRESPONDENCE WITH THE EUROPEAN COMMISSION IN TRADE DEFENCE CASES’ published on the website of the Directorate-General for Trade: http://trade.ec.europa.eu/doclib/docs/2011/june/tradoc_148003.pdf The interested parties must indicate their name, address, telephone and a valid e-mail address and they should ensure that the provided e-mail address is a functioning official business e-mail which is checked on a daily basis. Once contact details are provided, the Commission will communicate with interested parties by e-mail only, unless they explicitly request to receive all documents from the Commission by another means of communication or unless the nature of the document to be sent requires the use of a registered mail. For further rules and information concerning correspondence with the Commission including principles that apply to submissions by e-mail, interested parties should consult the communication instructions with interested parties referred to above.
Commission address for correspondence:





European Commission




Directorate-General for Trade




Directorate H




Office: CHAR 04/039




1040 Bruxelles/Brussel




BELGIQUE/BELGIË




TRADE-SOLAR-SUBSIDY@ec.europa.eu




6.   Non-cooperation

In cases where any interested party refuses access to or does not provide the necessary information within the time limits, or significantly impedes the investigation, findings, affirmative or negative, may be made on the basis of facts available, in accordance with Article 28 of the basic Regulation.
Where it is found that any interested party has supplied false or misleading information, the information may be disregarded and use may be made of facts available.
If an interested party does not cooperate or cooperates only partially and findings are therefore based on facts available in accordance with Article 28 of the basic Regulation, the result may be less favourable to that party than if it had cooperated.
Failure to give a computerised response shall not be deemed to constitute non-cooperation, provided that the interested party shows that presenting the response as requested would result in an unreasonable extra burden or unreasonable additional cost. The interested party should immediately contact the Commission.
7.   Hearing Officer

Interested parties may request the intervention of the Hearing Officer in trade proceedings. The Hearing Officer acts as an interface between the interested parties and the Commission investigation services. The Hearing Officer reviews requests for access to the file, disputes regarding the confidentiality of documents, requests for extension of time limits and requests by third parties to be heard. The Hearing Officer may organise a hearing with an individual interested party and mediate to ensure that the interested parties' rights of defence are being fully exercised.
A request for a hearing with the Hearing Officer should be made in writing and should specify the reasons for the request. For hearings on issues pertaining to the initial stage of the investigation the request must be submitted within 15 days of the date of publication of this Notice in the Official Journal of the European Union. Thereafter, a request to be heard must be submitted within specific deadlines set by the Commission in its communication with the parties.
The Hearing Officer will also provide opportunities for a hearing involving parties to take place which would allow different views to be presented and rebuttal arguments offered on issues pertaining, among other things, to the likelihood of a continuation or recurrence of subsidisation and injury, and Union interest.
For further information and contact details interested parties may consult the Hearing Officer's web pages on DG Trade's website: http://ec.europa.eu/trade/trade-policy-and-you/contacts/hearing-officer/
8.   Schedule of the investigation

The investigation will be concluded, pursuant to Article 22(1) of the basic Regulation within 15 months of the date of the publication of this Notice in the Official Journal of the European Union.
9.   Possibility to request a review under Article 19 of the basic Regulation

As this expiry review is initiated in accordance with the provisions of Article 18 of the basic Regulation, the findings thereof will not lead to the existing measures being amended but will lead to those measures being repealed or maintained in accordance with Article 22(3) of the basic Regulation.
If any interested party considers that a review of the measures is warranted so as to allow for the possibility to amend the measures, that party may request a review pursuant to Article 19 of the basic Regulation.
Parties wishing to request such a review, which would be carried out independently of the expiry review mentioned in this Notice, may contact the Commission at the address given above.
10.   Processing of personal data

Any personal data collected in this investigation will be treated in accordance with Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (11).


(1)  Notice of the impending expiry of certain countervailing measures (OJ C 137, 25.4.2015, p. 28).

(2)  OJ L 188, 18.7.2009, p. 93.

(3)  Council Implementing Regulation (EU) No 1239/2013 of 2 December 2013 imposing a definitive countervailing duty on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People's Republic of China (OJ L 325, 5.12.2013, p. 66).

(4)  Commission Decision 2013/423/EU of 2 August 2013 accepting an undertaking offered in connection with the anti-dumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the People's Republic of China (OJ L 209, 3.8.2013, p. 26).

(5)  Commission Implementing Decision 2013/707/EU of 4 December 2013 confirming the acceptance of an undertaking offered in connection with the anti-dumping and antisubsidy proceedings concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People's Republic of China for the period of application of definitive measures (OJ L 325, 5.12.2013, p. 214).

(6)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ L 343, 22.12.2009, p. 51).

(7)  An exporting producer is any company in the country concerned which produces and exports the product under review to the Union market, either directly or via third party, including any of its related companies involved in the production, domestic sales or exports of the product under review.

(8)  Only importers not related to exporting producers can be sampled. Importers that are related to exporting producers have to fill in Annex I to the questionnaire for these exporting producers. For the definition of a related party see footnote 3 in Annex I to this Notice.

(9)  The data provided by unrelated importers may also be used in relation to aspects of this investigation other than the determination of dumping.

(10)  A ‘Limited’ document is a document which is considered confidential pursuant to Article 19 of Council Regulation (EC) No 1225/2009 (OJ L 343, 22.12.2009 p. 51) and Article 6 of the WTO Agreement on Implementation of Article VI of the GATT 1994 (Anti-Dumping Agreement). It is also a document protected pursuant to Article 4 of Regulation (EC) No 1049/2001 of the European Parliament and of the Council (OJ L 145, 31.5.2001, p. 43).

(11)  OJ L 8, 12.1.2001, p. 1.


ANNEX I















ANNEX II