Commission Implementing Decision 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in or consigned from the People's Republic of China for the period of application of definitive measures (2013/707/EU) (repealed)

Commission Implementing Decision

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

(2013/707/EU) (repealed)

THE EUROPEAN COMMISSION,

Having regard to the Treaty on the Functioning of the European Union (‘the Treaty’),

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 anti-dumping Regulation’), and in particular Articles 8 and 9 thereof,

Having regard to Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidized imports from countries not members of the European Community(2) (‘the basic anti-subsidy Regulation’), and in particular Articles 13 and 15 thereof

After consulting the Advisory Committee,

Whereas:

A. PROCEDURE

1. Provisional measures

(1) By Regulation (EU) No 513/2013(3), the European Commission (‘the Commission’) imposed a provisional anti-dumping duty on imports into the Union of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the People's Republic of China (‘PRC’).

(2) The Commission, by Decision 2013/423/EU(4) accepted a price undertaking (‘the undertaking’) from a group of exporting producers together with the China Chamber of Commerce for Import and Export of Machinery and Electronic Products (‘CCCME’) with regards to the provisional duties. By Regulation (EU) No 748/2013(5) the Commission amended Regulation (EU) No 513/2013 to introduce the technical changes necessary due to the acceptance of the undertaking.

(3) On 8 November 2012, the Commission initiated an anti-subsidy proceeding with regard to imports into the Union of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in the People's Republic of China(6).

2. Subsequent procedure

(4) Following the adoption of the provisional anti-dumping measures, the Commission continued the investigation of dumping, injury and Union interest, as well as the parallel anti-subsidy proceeding. Wafers have been excluded from the scope of both investigations, hence from the scope of the definitive measures.

(5) The anti-dumping investigation confirmed the provisional findings of injurious dumping. The definitive findings of the investigation are set out in Council Implementing Regulation (EU) No 1238/13(7) imposing a definitive anti-dumping duty on imports into the Union of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the PRC.

(6) By Council Implementing Regulation (EU) No 1239/13(8), the Council also imposed a definitive countervailing duty on crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the PRC.

B. UNDERTAKING AS AMENDED

1. Amended undertaking offer

(7) Subsequent to the definitive disclosure of the anti-dumping and anti-subsidy findings, the exporting producers together with the CCCME submitted a notification to amend their initial undertaking offer.

(8) The exporting producers, together with the CCCME, within the deadline specified in Article 13(2) of the basic anti-subsidy Regulation, requested that the terms of the undertaking be accepted by the Commission to eliminate any injurious effects also of the subsidised imports.

(9) In addition, a number of additional exporting producers, within the deadline stipulated in Article 8(2) of the basic anti-dumping Regulation and Article 13(2) of the basic anti-subsidy Regulation, requested to participate in the undertaking.

(10) Furthermore, the CCCME and the exporting producers requested to revise the undertaking to take account of the exclusion of wafers from the scope of the investigation.

2. Comments of interested parties

(11) The undertaking offer as amended has been made available to interested parties. In the following the Commission addresses the main comments submitted by interested parties following the receipt of the undertaking offer.

2.1. Access to confidential information

(12) Numerous parties requested access to information on minimum import prices (‘MIP’), the annual level or in general different terms of the undertaking. One party complained that it was not timely informed about the initial undertaking offer. The Commission notes that the non-confidential version of the initial undertaking offer was included in the file open for inspection by interested parties directly upon its receipt as foreseen in Article 8(4) of the basic anti-dumping Regulation.

(13) MIPs and annual level are subject to professional secrecy pursuant to Article 339 of the Treaty and confidential according to Articles 19 of the basic anti-dumping Regulation and Article 29 of the basic anti-subsidy Regulation. Therefore, in line with the Commission's practice, they are not disclosed to third parties. In the current case, upon parties' requests, the Commission requested CCCME whether some more information related to MIP and annual level could be disclosed. CCCME agreed to disclose an approximation of the MIP (defined as ‘below’ a specific value). Interested parties could consult that information on the non-confidential file. The Commission considers that such information, in this specific case, strikes an appropriate balance between the requirements of confidentiality and right of defence.

(14) The Commission has also considered the requests relating to different terms of the undertaking. It has come to the conclusion that by revealing the information requested, it would increase the risk of price manipulation and gaming on the market for solar panels. In order not to unduly distort the functioning of the market for solar panels, the Commission considers that the information requested should not be available to buyers and competitors of the companies that have offered the undertaking. Those considerations apply as well to MIP and annual level, which should not be disclosed at a greater level of detail.

2.2. Transition period

(15) One interested party requested the Commission to allow for a transition period (and exemption from anti-dumping duties) when goods were ordered prior to the entry into force of the undertaking but presented for customs clearance after that date without an undertaking invoice. In order to be exempted from anti-dumping duties, goods presented for customs clearance have to fulfil the conditions set out in the Regulation (EU) No 748/2013. The argument therefore has to be rejected.

3. Evaluation of the undertaking offer as amended

(16) The Commission evaluated the undertaking offer as amended. First, it noted that the technical revision of the undertaking is necessary to reflect the definitive findings of the anti-dumping and anti-subsidy investigations (i.e. the exclusion of wafers from the scope of the investigation).

(17) Second, the Commission concluded that, based on the investigation period data, the trade volume of the additional companies in total Chinese exports to the EU is very limited and thus does not change the Commission's provisional assessment that the undertaking removes the injurious effect of dumping, with the MIP and within the annual level as initially offered.

(18) The Commission also assessed whether the inclusion of the additional exporting producers would be likely to jeopardize the effective monitoring of the undertaking or to increase the risk of circumvention. In this context, the Commission noted that the CCCME demonstrated its active role in the practical implementation of the undertaking. In addition, the inclusion of the additional exporting producers will not change the terms of the undertaking. Therefore, the Commission concluded that the inclusion of the additional producers does not alter its initial findings on the effective monitoring of the undertaking and on the limited risk of circumvention.

(19) Third, anti-subsidy and anti-dumping investigations were carried out in parallel in the current case. As per the lesser duty a rule, a definitive countervailing duty rate was set at the level of the subsidy margin and a definitive anti-dumping duty at the injury elimination level. Hence, the combined anti-dumping and countervailing duty rate will be equal to the injury elimination level (countervailing duty topped-up with anti-dumping duty up to injury elimination level). Therefore, the Commission concluded that the undertaking still removes the injurious effects of both dumping and subsidization, thereby no change to the MIP is needed.

(20) Fourth, one party contested the fact that the Commission had relied in Decision 2013/423/EU on post-IP data in order to assess whether the undertaking removed the injurious effect of dumping, relying on Article 6(1) of the basic anti-dumping Regulation and Article 11(1) of the basic anti-subsidy Regulation. Article 6(1) of the basic anti-dumping Regulation stipulates that ‘information relating to a period subsequent to the investigation period shall, normally [emphasis added], not be taken into account.’ Similar wording can be found in Article 11(1) last sentence of the basic anti-subsidy Regulation. Recital 3 of Decision 2013/423/EU sets out the circumstances which led the Commission to rely on post-IP data in the present case. The party has not contested the factual accurateness of those circumstances. The argument is therefore rejected.

(21) Fifth, the undertaking ensures stability of supply for the Union at a sustainable price level. Therefore, there are no reasons of general policy for not accepting the undertaking.

(22) One party has considered that the MIP is set too high, one party has considered that it is set too low. As set out in recital 7 of Decision 2013/423/EU, in order to assess whether that price undertaking removes the injurious effect of dumping, the Commission has analysed, inter alia, the current export prices and the level of provisional duty. After having analysed the additional information provided by parties, the information available on the current and expected evolution of production costs, and price developments since the adoption of Decision 2013/423/EU, the Commission confirms the finding in recital 7 of Decision 2013/423/EU.

(23) In the absence of other comments, the findings in recitals 3 to 9 of Decision 2013/423/EU, as complemented by the findings set out above in recitals 16 to 22 are confirmed.

4. Changes in companies' names and changes to the list of related companies in the EU

(24) The inclusion of new companies in the undertaking triggers changes to the list of related companies in the EU as submitted in the initial undertaking offer. In addition, one exporting producer requested inclusion of a new related company in the EU to replace another company.

(25) Finally, one company changed its name.

C. ACCEPTANCE OF THE UNDERTAKING AS AMENDED

(26) In the view of the above, the undertaking as amended is acceptable. Interested parties have been informed of the essential facts, considerations and obligations upon which the acceptance is based. The Commission did not receive any comments.

HAS ADOPTED THIS DECISION:

(1)

OJ L 343, 22.12.2009, p. 51.

(2)

OJ L 188, 18.7.2009, p. 93.

(3)

OJ L 152, 5.6.2013, p. 5.

(4)

OJ L 209, 3.8.2013, p. 26.

(5)

OJ L 209, 3.8.2013, p. 1.

(6)

OJ C 340, 8.11.2012, p. 13.

(7)

See page 1 of this Official Journal.

(8)

See page 66 of this Official Journal.