JingAo Solar and Others v Council (Judgment) [2017] EUECJ T-158/14 (28 February 2017)

Judgment Background to the dispute The applicants, JingAo Solar Co. Ltd and the other applicants whose names appear in the annex, are companies belonging to the JA Solar, Yingli Green Energy Holding Ltd and Canadian Solar groups respectively. JingAo Solar, Shanghai JA Solar Technology Co. Ltd, Yangzhou JA Solar Technology Co. Ltd, Hefei JA Solar Technology Co. Ltd, Shanghai JA Solar PV Technology Co. Ltd, 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 Technology Co. Ltd, Yingli Energy (Beijing) Co. Ltd, Canadian Solar Manufacturing (Changshu), Inc., Canadian Solar Manufacturing (Luoyang), Inc., Csi Cells Co. Ltd and Csi Solar Power (China), Inc. are exporting producers of crystalline silicon photovoltaic cells and modules (‘cells’ and ‘modules’ respectively). JA Solar, Yingli Green Energy Europe, Yingli Green Energy South East Europe GmbH, Yingli Green Energy France SAS, Yingli Green Energy Spain, SL, Yingli Green Energy Italia Srl, Yingli Green Energy International AG and Canadian Solar Emea GmbH are presented as their associated importers established in the European Union. On 6 September 2012, the European Commission published in the Official Journal of the European Union a notice of initiation of an anti-dumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in the People’s Republic of China (OJ 2012 C 269, p. 5). Alongside this, on 8 November 2012, the Commission published in the Official Journal of the European Union a notice of initiation of an anti-subsidy proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in the People’s Republic of China (OJ 2012 C 340, p. 13). The JA Solar, Yingli Green Energy Holding Limited, and Canadian Solar groups cooperated in that proceeding. On 23 November 2012, the applicants, which are exporting producers, asked to be included in the sample under Article 27 of Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Community (OJ 2009 L 188, p. 93, ‘the basic regulation’). The sample selected by the Commission consisted initially of seven groups of companies, including the three cooperating exporters with the largest volume of exports of modules, the two cooperating exporters with the largest volume of exports of cells and the two cooperating exporters with the largest volume of exports of wafers. The number of exporting producers making up the sample was eventually fixed at eight, since two groups of companies, namely Jinko Solar and Renesola Jiangsu Ltd, were not definitively considered to be related. The exporting producers in the JA Solar and Yingli Green Energy Holding groups were selected as one of the exporting producers with the largest volume of exports of cells and of modules respectively. The exporting producers in the Canadian Solar group were not selected for that sample. On 28 January 2013, the applicants in Cases T‑158/14 and T‑161/14 submitted their replies to the anti-subsidy questionnaire. On 1 March 2013, the Commission adopted Regulation (EU) No 182/2013 making 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 subject to registration (OJ 2013 L 61, p. 2). On 4 June 2013, the Commission adopted Regulation (EU) No 513/2013 imposing a provisional anti-dumping duty on imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the People’s Republic of China and amending Regulation (EU) No 182/2013 (OJ 2013 L 152, p. 5). On 2 August 2013, the Commission adopted Decision 2013/423/EU accepting an undertaking offered in connection with the anti-dumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the People’s Republic of China (OJ 2013 L 209, p. 26). That undertaking was offered by a group of Chinese cooperating exporting producers listed in annex to that decision, together with the China Chamber of Commerce for Import and Export of Machinery and Electronic Products (CCCME). On the same day, the Commission adopted Regulation (EU) No 748/2013 amending Regulation No 513/2013 (OJ 2013 L 209, p. 1) in order to take account of Decision 2013/423. In essence, subject to the fulfilment of certain conditions, Article 6 of that regulation, as amended, provides, inter alia, that imports declared for release into free circulation for products currently falling within CN code ex 3818 00 10 (TARIC codes 3818 00 10 11 and 3818 00 10 19) and CN code ex 8541 40 90 (TARIC codes 8541 40 90 21, 8541 40 90 29, 8541 40 90 31 and 8541 40 90 39) which are invoiced by companies from which undertakings have been accepted by the Commission and whose names are listed in the annex to Decision 2013/423, are to be exempt from the provisional anti-dumping duty imposed by Article 1 of the regulation. On 27 August 2013, the Commission disclosed the essential facts and considerations on the basis of which it intended to propose the imposition of countervailing duties on imports of modules and key components (cells) originating in or consigned from China. According to recital 4 of Commission Implementing Decision 2013/707/EU 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 (OJ 2013 L 325, p. 214), following the adoption of the provisional anti-dumping measures (see paragraph 9 above), the Commission continued the investigation of dumping, injury and EU interest, as well as the parallel anti-subsidy proceeding. Wafers were excluded from the scope of both investigations and hence from the scope of the definitive measures. According to recitals 7 to 10 and Article 1 of that decision, following 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 (see paragraph 10 above). The Commission accepted the terms of the undertaking with a view also to eliminating any injurious effects of the subsidised imports. In addition, an additional number of exporting producers asked to participate in that undertaking. Furthermore, the CCCME and the exporting producers asked to revise the undertaking to take account of the exclusion of wafers from the scope of the investigation. By virtue of Article 1 of Implementing Decision 2013/707, read in the light of recital 26 thereof, the amended undertaking was accepted by the Commission. The definitive findings of the investigation are set out in 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 2013 L 325, p. 66, ‘the contested regulation’). Article 1 imposes (i) a definitive countervailing duty of 5% on JingAo Solar, Shanghai JA Solar Technology, Yangzhou JA Solar Technology, Hefei JA Solar Technology, Shanghai JA Solar PV Technology, (ii) a definitive countervailing duty of 6.3% on Yingli Energy (China), Baoding Tianwei Yingli New Energy Resources, Hainan Yingli New Energy Resources, Hengshui Yingli New Energy Resources, Tianjin Yingli New Energy Resources, Lixian Yingli New Energy Resources, Baoding Jiasheng Photovoltaic Technology, Beijing Tianneng Yingli New Energy Resources Technology, and Yingli Energy (Beijing) and (iii) a definitive countervailing duty of 6.4% on the cooperating non-sampled Chinese companies listed in the annex to the contested regulation. This is the case for the exporting producers in the Canadian Solar group. The definitive duty equates to the weighted average of the sampled companies’ rates. Subject to the fulfilment of certain conditions, Article 2 of that regulation provides, in essence, that imports declared for release into free circulation for the products currently falling within CN code ex 8541 40 90 (TARIC codes 8541 40 90 21, 8541 40 90 29, 8541 40 90 31 and 8541 40 90 39) which are invoiced by companies from which undertakings have been accepted by the Commission, and whose names are listed in the annex to Decision 2013/707, are to be exempt from the anti-subsidy duty imposed by Article 1 of the regulation. On 2 December 2013, the Council of the European Union also adopted Implementing Regulation (EU) No 1238/2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China (OJ 2013 L 325, p. 1). After the application was lodged, the Commission adopted Implementing Regulation (EU) No 2015/866 of 4 June 2016 withdrawing the acceptance of the undertaking for three exporting producers under Implementing Decision 2013/707 (OJ 2015 L 139, p. 30). Pursuant to Article 1 of this regulation, acceptance of the undertaking, concerning notably Canadian Solar Manufacturing (Changshu), Canadian Solar Manufacturing (Luoyang), Csi Cells, and Csi Solar Power (China), jointly covered by the additional TARIC code B805, is withdrawn. That regulation entered into force the day after its publication in the Official Journal of the European Union , that is to say, 6 June 2015. On 15 November 2016, the Commission adopted Implementing Regulation (EU) No 2016/1998 withdrawing the acceptance of the undertaking for five exporting producers under Implementing Decision 2013/707 (OJ 2016 L 308, p. 8). Pursuant to Article 1(d) of that regulation, acceptance of the undertaking, as regards the companies JingAo Solar, Shanghai JA Solar Technology, JA Solar Technology Yangzhou, Hefei JA Solar Technology et Shanghai JA Solar PV Technology, and their associated company in the European Union, jointly covered by the additional TARIC code: B794, is withdrawn. That regulation entered into force the day after its publication in the Official Journal of the European Union , that is to say, 17 November 2016. Procedure and forms of order sought By applications lodged at the Court Registry on 28 February 2014, the applicants brought the present action. By document lodged at the Court Registry on 19 May 2014, the Commission applied for leave to intervene in the present proceedings in support of the form of order sought by the Council. By document lodged at the Court Registry on 20 May 2014, the Council requested that the present cases be joined with JingAo Solar and Others v Council (T‑157/14), Yingli Energy (China) and Others v Council (T‑160/14) and Canadian Solar Emea and Others v Council (T‑162/14) concerning actions for annulment of Regulation No 1238/2014. By decision of 10 July 2014, the President of the Fifth Chamber of the Court refused the request to join the present cases with JingAo Solar and Others v Council (T‑157/14) and Yingli Energy (China) and Others v Council (T‑160/14), Canadian Solar Emea and Others v Council (T‑162/14). By order of 14 July 2014, the President of the Fifth Chamber of the Court granted the Commission leave to intervene. By decision of the President of the Fifth Chamber of the General Court of 16 July 2014, the present cases were joined for the purposes of the written and oral parts of the procedure and the final ruling. On a proposal from the Judge-Rapporteur, the Court decided to open the oral part of the procedure. The parties presented oral argument and their replies to the questions put by the Court at the hearing on 9 June 2016. The applicants claim that the Court should: – declare the action admissible; – annul the contested regulation as far as it applies to them; – order the Council to pay the costs. The Council contends that the Court should: – dismiss the action as inadmissible; – in the alternative, dismiss the action as unfounded; – in the alternative, annul Article 1 of the contested regulation, in the event that the first or second plea in law is upheld, in so far as it imposes a definitive countervailing duty on imports of modules and cells consigned from China and exported by the applicants; – order the applicants to pay the costs. The Commission contends that the Court should: – dismiss the action as inadmissible; – in the alternative, dismiss the action as unfounded; – order the applicants to pay the costs, including those of the intervener. Law The objections of inadmissibility raised by the institutions In the first place, the Council and the Commission (together ‘the institutions’) claim, in essence, that the imposition of definitive countervailing duties by Article 1 of the contested regulation, on the one hand, and the undertaking offered by certain Chinese exporting producers and accepted by the Commission in Decision 2013/707, which is reflected in the exemption of imports of certain products imported by those producers from the countervailing duty under Article 2 of the contested regulation, on the other hand, form a non-severable whole. According to settled case-law, partial annulment of an EU legal act is possible only if the element the annulment of which is sought may be severed from the remainder of the act. The requirement of severability, the test for which is objective, is not satisfied in the case where the partial annulment of an act would have the effect of altering its substance (judgments of 24 May 2005, France v Parliament and Council , C‑244/03, EU:C:2005:299, paragraphs 12 and 13, and of 6 December 2012, Commission v Verhuizingen Coppens , C‑441/11 P, EU:C:2012:778 , paragraph 38). The EU institutions maintain that they took the undertaking into account in their analysis leading to the contested regulation. In order to achieve the result that was sought by the group of exporting producers, including the applicants, when offering the undertaking, the institutions had to combine the decision relating to the undertaking — which includes a minimum import price (‘the MIP’) for those imports that fall within the ‘annual level’ and consent for payment of definitive duties for imports that exceed that level — and the contested regulation. By offering an undertaking, the applicants thus accepted that injury was caused to the EU industry by their dumped and subsidised imports and that it is in the interest of the European Union to take measures. In the second place, the acceptance of that undertaking offer by the combination of the decision relating to the undertaking and the contested regulation is what the applicants had sought in the administrative procedure. Relying on case-law (order of 28 January 2004, Netherlands v Commission , C‑164/02, EU:C:2004:54 , paragraphs 18 to 25; judgments of 17 September 1992, NBV and NVB v Commission , T‑138/89, EU:T:1992:95, paragraphs 30 to 35; of 22 March 2000, Coca-Cola v Commission , T‑125/97 and T‑127/97, EU:T:2000:84, paragraphs 77 to 109; of 30 January 2002, Nuove Industrie Molisane v Commission , T‑212/00, EU:T:2002:21, and of 14 April 2005, Sniace v Commission , T‑141/03, EU:T:2005:129), the institutions maintain that the applicants do not have an interest in challenging acts whose adoption they sought. In the third place, if the application had sought the annulment of the contested regulation as a whole, it would be inadmissible, in so far as it does not contain any plea or argument contesting the undertaking and the minimum import price referred to in Article 2 of the contested regulation. Accordingly, the application prevents the Council from knowing the grounds on which those articles are challenged, thus preventing the Council from defending itself. In the fourth place, according to the Commission, the annual level of imports of the product concerned was not reached either in 2013, 2014, or 2015. Therefore, the applicants have not concluded a single import transaction that would be subject to the definitive duties. For that reason, the Commission fails to see the interest of the applicants in having the contested regulation annulled. The applicants dispute the institutions’ arguments. It should first be borne in mind that, since the admissibility of an action must be assessed at the time when it is brought, that is to say when the application is lodged (see order of 14 February 2012, Grasso v Commission , T‑319/08, not published, EU:T:2012:71, paragraph 16 and the case-law cited), withdrawal of the acceptance of an undertaking under Regulation No 2015/866 and Regulation No 2016/1998, after the applications have been lodged cannot affect the admissibility of that action in so far as concerns the applicants belonging to the groups Canadian Solar and JA Solar. In that regard, first, the acceptance of the offer of an undertaking neither affects the admissibility of an action brought against an act imposing a countervailing duty nor the assessment of the grounds relied on in support of that application, since by accepting an undertaking proposed by an interested party, the institutions merely changed the type of definitive remedy to be adopted, while the reasons for adopting a remedy in the first place remain unaffected. It follows from recital 14, Article 13(1) and (6) and Article 15(1) of the basic regulation that acceptance of an undertaking offered by exporting producers and countervailing duties are two forms of definitive corrective measures which presuppose a positive conclusion as regards the existence of subsidisation and injury, as in the present case. That conclusion is consistent with the wording of the contested regulation itself, section 8 of which addresses undertakings under the heading ‘Form of the measures’. Moreover, the admissibility of actions against regulations imposing definitive duties brought by interested parties whose undertaking had been accepted was, implicitly but necessarily, upheld in the judgment of 14 March 2007, Aluminium Silicon Mill Products v Council (T‑107/04, EU:T:2007:85) delivered in an action brought by parties which had entered into precisely the same type of undertaking as that in question, and in the judgments of 30 April 2013, Alumina v Council (T‑304/11, EU:T:2013:224, paragraph 11) and of 1 October 2014, Council v Alumina (C‑393/13 P, EU:C:2014:2245 ). The conditions for the admissibility of an action concern an absolute bar to proceeding with the action, which the Court must, if need be, consider of its own motion (see order of 6 October 2015, GEA Group v OHIM (engineering for a better world) , T‑545/14, EU:T:2015:789, paragraph 14 and the case-law cited). Neither the General Court nor the Court of Justice found, on account of the undertaking or type of undertaking binding the applicants in those cases, that the actions for annulment they brought against Council Regulation (EC) No 2229/2003 of 22 December 2003 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of silicon originating [in] Russia (OJ 2003 L 339, p. 3) and Council Implementing Regulation (EU) No 464/2011 of 11 May 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of zeolite A powder originating in Bosnia and Herzegovina (OJ 2011 L 125, p. 1) respectively were inadmissible. In so far as exporting producers wish to dispute findings concerning the existence of a subsidy and injury contained in the contested regulation imposing definitive duties, the EU institutions cannot rely on the definitive form of the measure, which they adopted themselves, in order to exempt that regulation from judicial review. The fact that the undertaking in question includes, in addition to the MIP, an annual limit above which countervailing duties become payable, and the parties concerned are unable to choose for themselves whether to sell the product concerned in accordance with the MIP or whether to set the price freely while paying a duty, is not capable of calling that analysis into question. It is merely a particular form of definitive remedy whose protective effect on the EU industry must be equivalent to the countervailing duties. That fact cannot affect the admissibility of an action for annulment of the contested regulation. As regards the institutions’ argument that acceptance of that type of undertaking also requires the adoption of a definitive regulation imposing countervailing duties, it is sufficient to note that that was mutatis mutandis the situation in the cases giving rise to the judgments of 14 March 2007, Aluminium Silicon Mill Products v Council (T‑107/04, EU:T:2007:85), of 30 April 2013, Alumina v Council (T‑304/11, EU:T:2013:224, paragraph 11) and of 1 October 2014, Council v Alumina (C‑393/13 P, EU:C:2014:2245 ), and it did not have any effect on the admissibility of the action. Next, the applicants have sought annulment of that regulation in its entirety, in so far as it applies to them. In that context, an error capable of invalidating the assessments made by the institutions leading to the adoption of Article 1 of the contested regulation would alter the very substance of that regulation. Article 2 of the contested regulation would automatically lapse, in so far as it sets out an exemption from the payment of the anti-subsidy duties established by virtue of Article 1 of that regulation. It follows, also from point 9.1 of the undertaking offer, that that undertaking is only valid while the contested regulation is in force. It is also incorrect to maintain, as the Commission does, that by seeking annulment of the contested regulation, the applicants are in fact seeking annulment of a measure whose adoption they requested. It is obvious that the applicants did not wish to be subject to the definitive measures laid down in the basic regulation, whether relating to anti-dumping duties or the application of a minimum price by virtue of an undertaking. Such measures hinder the economic freedom of the applicants. In particular, the companies would not be able to sell the product concerned on the EU market below a certain price and would have to fulfil many administrative requirements. Accordingly, the undertaking offer merely expressed a preference for one type of those definitive measures, in the event that the conditions for adopting those measures were fulfilled. Finally, as regards the Commission’s argument concerning the applicants’ interest in bringing proceedings (see paragraph 35 above), it must be noted, as the applicants correctly claim, although subject to the Court’s findings in respect of the first two pleas in law (see paragraph 71 below), that their interest in bringing proceedings in the light of the form of order sought in the application consists, in any event, of the fact that in the event of annulment of the contested regulation — in so far as it concerns the categories of products exported by the applicants during the investigation period and at the time of lodging of the application — all the definitive measures adopted by the Council would have no legal basis, and consequently the applicants would no longer be required to pay any countervailing duties on products not covered by the undertaking or exceeding the annual level or to adhere to the minimum price set out in the undertaking (see paragraph 42 above), which would be capable of boosting the competitiveness of their products on the EU market. It follows that the objection of inadmissibility raised by the institutions must be dismissed. Substance In support of their action, the applicants raise three pleas in law, alleging, first, infringement of Article 10(12) and (13) of the basic regulation, secondly, infringement of Articles 1 and 27 of that regulation and, thirdly, infringement of Article 2(c) of that regulation. The first and second pleas in law, alleging infringement of Article 1, Article 10(12) and (13) and Article 27 of the basic regulation The applicants claim that countervailing duties were imposed in respect of cells originating in third countries but shipped from China, modules originating in third countries but consigned from China and modules originating in China but consigned from third countries, without their being investigated and even without the institutions selecting a representative sample of those products and, as far as the first two categories of those products are concerned, without being referred to in the notice of initiation. They maintain, in essence, that countervailing duties can be imposed only on the import of products which are explicitly identified in the notice of initiation and which have been investigated. The initiation of an anti-subsidy investigation is conditional on the publication of a notice of initiation, which is intended to inform interested parties of their procedural rights and of the scope of the investigation by reference to the targeted product types and countries. Without that information, interested parties are not given the opportunity to cooperate in the investigation, which leads the institutions to rely on partial evidence to reach their findings of subsidisation and injury. In the present case, the applicants submit that the notice of initiation of the procedure leading to the adoption of the contested regulation referred exclusively to imports of modules and key components originating in China. However, the institutions first registered and then imposed countervailing measures on imports of modules and key components both originating in and consigned from China. The applicants claim, in the first place, that a full reading of point 5 of the notice of initiation shows that at that stage the institutions’ intention was not to investigate the product concerned consigned from China but merely to address the origin rules applicable to modules and key components. This interpretation is confirmed by the fact that the institutions ultimately defined specific origin rules for modules in Commission Implementing Regulation (EU) No 1357/2013 of 17 December 2013 amending Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 2013 L 341, p. 47). Consequently, contrary to what the institutions claim, exporting producers shipping goods from China were informed that special origin rules could be adopted for modules and key components but they were not given the opportunity to cooperate in the investigation. In the second place, the applicants submit that Annex A to the notice of initiation limited its scope to modules and key components originating in China since, in accordance with that annex, exporting producers must indicate the turnover for sales of modules and key components ‘as defined in the notice of initiation’, which explicitly referred to modules and key components originating in China. Therefore, only exporting producers of modules and key components originating in China were requested to declare information in Annex A to the notice of initiation. In the third place, the applicants claim that Annex A concerned only exporting producers of modules and key components originating in China. Thus, with reference to the judgments of 12 May 1989, Continentale Produkten-Gesellschaft (246/87, EU:C:1989:194, paragraph 12); of 11 July 1990, Sermes (C‑323/88, EU:C:1990:299, paragraph 29 et seq.), and of 30 March 2000, Miwon v Council (T‑51/96, EU:T:2000:92, paragraph 52), the applicants assert that the sample thus selected could not be representative of exporting producers of both modules and key components originating in and consigned from China, since the sample’s representativeness must be assessed on the date it is established. It is on the basis of the data provided by the sampled exporting producers, and the resulting findings of subsidisation, that the institutions applied definitive countervailing measures (recital 847 of the contested regulation) on imports of modules and components originating in or consigned from China. It is also clear from recital 847 that all individual company countervailing duty rates, on the basis of which the residual duty rate is defined for cooperating companies not included in the sample, are exclusively applicable to imports of products originating in China and produced by the sampled exporting producers. In the fourth place, the scope of the investigation was defined by the notice of initiation and the fact that the questionnaire designated China as ‘country concerned’ and not ‘country of origin’ is of no relevance, contrary to the statement made in recital 94 of the contested regulation. The anti-subsidy questionnaire was provided only to the sampled exporting producers. In addition, it is standard practice for the institutions to refer to the country of origin targeted by an anti-subsidy investigation as the ‘country concerned’ in the anti-subsidy questionnaires for exporting producers. In the fifth place, after noting that, under the non-preferential origin rules, the place of production of cells determines their customs origin and that the customs origin of modules is established by reference to the origin of the majority of their component cells, the applicants claim that the investigation conducted by the Commission did not cover cells originating in third countries but consigned from China, modules consigned from China but originating in third countries and modules consigned from third countries but originating in China. Those products were also not represented in the sample. It is particularly relevant, as regards the last category of products, that the rules for determining origin had not yet been clearly established during the investigation. The Commission did not even advise exporting producers, representative organisations and governments in other countries of the initiation of this investigation. The investigation was thus limited to modules and key components originating in and consigned from China, as can also be seen from recital 847 of the contested regulation. Lastly, the applicants maintain that if these two pleas in law were held to be well founded, the contested regulation would have to be annulled in its entirety. The institutions dispute the applicants’ arguments. First of all, it is necessary to bear in mind the rules for determining the origin and provenance of the goods concerned during the investigation. As regards cells, it is the place of their manufacture that determined their customs origin. The customs origin of the majority of the cells, in turn, determined the customs origin of the modules. That rule, based on the application of the general rule that goods whose production involved more than one country are to be deemed to originate in the country where they underwent their last, substantial, economically justified processing or working in an undertaking equipped for that purpose and resulting in the manufacture of a new product or representing an important stage of manufacture, laid down in Article 24 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended, was given specific expression, in the field of the product concerned, in Implementing Regulation No 1357/2013, adopted after the adoption of the contested regulation (see paragraph 49 above). Therefore, if cells are made in China and shipped to the European Union from China, it is a case of an import both originating in and consigned from China. If cells are produced in a third country, such as Malaysia, but exported to the European Union from China, such products are of Malaysian origin but consigned from China. The same is true where such a cell is subject in China to non-substantial processing or working within the meaning of Article 24 of Regulation No 2913/92, as amended. As regards modules comprising a majority of cells originating in China and shipped to the European Union from China, this is a case of a product which both originates in and is consigned from China. Modules manufactured (or assembled) in China, but in which the majority of cells are from a third country, are considered to be products originating in a third country, but consigned from China. Finally, a module is of Chinese origin, but is consigned from a third country, if the majority of the cells from which it is composed originate in China, but it was assembled in a third country. In that regard, it is important to ascertain, as the Council requests, whether the applicants are entitled to claim that, first, the notice of initiation did not announce the initiation of an investigation with regard to the product concerned consigned from China, but originating in a third country, and, secondly, the product concerned consigned from China, but originating in a third country, and the modules of Chinese origin, but consigned from a third country, were subject to a countervailing duty, even though the investigation was not carried out with regard to them. The admissibility of those grounds should therefore be examined (see, to that effect, judgment of 15 March 1973, Marcato v Commission , 37/72, EU:C:1973:33, paragraphs 7 and 8). In that regard, according to settled case law concerning an interest in bringing proceedings, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it (see judgment of 17 September 2015, Mory and Others v Commission , C‑33/14 P, EU:C:2015:609 , paragraph 55 and the case-law cited). An applicant’s interest in bringing proceedings must be vested and current. It may not concern a future and hypothetical situation (see judgment of 17 September 2015, Mory and Others v Commission , C‑33/14 P, EU:C:2015:609 , paragraph 56 and the case-law cited). That interest must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible, and continue until the final decision, failing which there will be no need to adjudicate (see judgment of 17 September 2015, Mory and Others v Commission , C‑33/14 P, EU:C:2015:609 , paragraph 57 and the case-law cited). The applicant must prove that he has an interest bringing proceedings, which is an essential and fundamental prerequisite for any such proceedings. In particular, in order for an action for annulment of an act, submitted by a natural or legal person, to be admissible, the applicant must justify in a relevant manner his interest in the annulment of that act (see judgment of 4 June 2015, Andechser Molkerei Scheitz v Commission , C‑682/13 P, not published, EU:C:2015:356 , paragraphs 27 and 28 and the case-law cited; see, to that effect, judgment of 17 September 2015, Mory and Others v Commission , C‑33/14 P, EU:C:2015:609 , paragraph 58 and the case-law cited). By analogy, the same is true of an interest in raising a plea in law. First, the applicants have not indicated anywhere in their pleadings what interest they might derive from the potential annulment of the contested regulation on the basis of the first two pleas in law. It is not apparent from those pleadings that, during the investigation and at the time when the action was lodged, they were producing and exporting to the European Union, or importing into the European Union, the product concerned originating in a third country, but consigned from China, or the modules originating in China, but consigned from a third country. Nor do those pleadings refer to any document in the annex which would be such as to demonstrate such a circumstance. When questioned at the hearing, the applicants submitted that they were indeed producing and exporting to the European Union the product concerned originating in a third country, but consigned from China, and modules originating in China but consigned from a third country. However, they were not able to identify in their pleadings or in the annexes thereto the slightest evidence to that effect. They also acknowledged that they had not expressly specified in the application that they export the two categories of the product concerned in question to the European Union. Accordingly, they have not proved their interest in challenging the establishment of a countervailing duty on imports of those categories of the product concerned. Therefore, the applicants have not in any way justified their interest in making an application to that effect, even if the burden of proof lay with them (see paragraph 64 above). Consequently, the applicants have not demonstrated that they have an interest in claiming that, first, the notice of initiation did not announce the initiation of an investigation with regard to the product concerned consigned from China but originating in a third country and, secondly, that the product concerned consigned from China, but originating in a third country, and the modules of Chinese origin, but consigned from a third country, were subject to a countervailing duty, even though the investigation was not carried out with regard to them. In any event, the applicants have provided no evidence at all before the Court that they duly drew the institutions’ attention during the administrative procedure to the fact that they were producing and exporting to the European Union, or importing into the European Union, the product concerned originating in a third country, but consigned from China, and modules originating in China, but consigned from a third country, during the investigation period and at the time when the application was lodged. Although the applicants claim, in essence, that they correctly informed the institutions in the light of the wording of the notice of initiation, it must be noted that point 5 of that notice states that companies which ship the product concerned from China but consider that part or even all of those exports do not have their customs origin in China are invited to come forward in the investigation and to furnish all relevant information, and that the origin of the product under investigation exported from the country concerned will be examined in the light of that and other information gathered in this investigation. That assessment is an integral part of the investigation. Secondly, the applicants’ arguments seeking, in essence, to justify their interest in raising those two pleas in law by the fact that, in the future, they might export both categories in question of the product concerned to the European Union must be rejected, on the basis of the case-law cited in paragraphs 62 and 63 above, as referring to a hypothetical situation. The first and second pleas in law must therefore be rejected as inadmissible. The third plea in law, alleging infringement of Article 2(c) of the basic regulation According to the applicants, the anti-subsidy investigation may cover only one product or one group of closely resembling products. In the present case, the institutions did not regard cells and modules as a single product. The applicants claim that case-law has defined a set of factors that determine whether different product types may be considered to form one single like product, in particular the physical, technical and chemical characteristics of the products; their end use; their interchangeability; the consumer perception; the distribution channels; and their manufacturing processes and costs of production) (judgments of 13 September 2010, Whirlpool Europe v Council , T‑314/06, EU:T:2010:390, paragraph 138; of 17 December 2010 in EWRIA and Others v Commission , T‑369/08, EU:T:2010:549, paragraph 82, and of 10 October 2012 in Gem-Year and Jinn-Well Auto-Parts (Zhejiang) v Council , T‑172/09, not published, EU:T:2012:532, paragraph 59). According to the Court’s case law, a claim that the product concerned is ill defined must be based on arguments which show that either the institutions erred in their assessment with regard to the factors they held to be relevant or that the application of other more relevant factors required that the definition of the product concerned be restricted (judgment of 13 September 2010, Whirlpool Europe v Council , T‑314/06, EU:T:2010:390, paragraph 141). The applicants claim in that regard that although the institutions claim that cells and modules form one single product, it is clear from recitals 475 to 594 of the contested regulation that they conducted separate injury analyses for modules and cells. In addition, while the average sales price of a cell in the European Union ranges from EUR 0.95 to EUR 2.37, the average sales price of a module ranges from EUR 103 to EUR 361. Furthermore, the institutions manifestly erred in their assessment with regard to the factors they held to be relevant in determining the product concerned. Contrary to the statements made by the contested regulation in recitals 47, 60 and 71, cells and modules do not share the same basic physical, technical and chemical characteristics, namely the ability to generate electricity from sunlight, or the same end use, namely potential sale for integration into solar photovoltaic systems. First, with regard to physical characteristics, the applicants submit that cells and modules differ in their size, weight, thickness, mass, density, colour and resistance. Secondly, the main chemical component of cells, namely polysilicon, accounts for a mere 20% of a module’s cost structure. The applicants claim that it is apparent from the institutions’ practice in that field that a common raw material is irrelevant in determining whether different products share the same physical, chemical, and technical characteristics. Thirdly, at the outset, according to the applicants, the principal technical characteristic of a module is to generate and transmit electricity, while a cell cannot transmit electricity. Next, whether cells and modules both have the ability to generate electricity from sunlight cannot be deemed a decisive factor in the determination of the product concerned since the institutions initially excluded three products from the investigation which all have the ability to generate electricity from sunlight, namely solar chargers that consist of less than six cells, are portable and supply electricity to devices or charge batteries; thin-film photovoltaic products; and products that are permanently integrated into electrical goods, where the function of the electrical goods is other than power generation, and where those electrical goods consume the electricity generated by the integrated cells. Cells and modules differ greatly in terms of their performance in the production of electricity. Fourthly, the applicants maintain that two products do not share the same end use where switching from one to another constitutes a technical and economic deterrent. Switching from a cell to a module constitutes a technical deterrent in so far as a cell is just one of numerous inputs used to manufacture a module. This also constitutes an economic deterrent because, as acknowledged in recital 40 of the contested regulation, these inputs amount to 40% of the total cost of a module. Lastly, the application of other more relevant factors required that cells and modules be considered two distinct products. In the present case, the institutions acknowledged that cells and modules have different consumer perception (recital 59 of the contested regulation), different distribution channels (recital 57 of the contested regulation), different manufacturing processes and different costs of production (recital 52 of the contested regulation). Furthermore, it is common knowledge that cells and modules are not interchangeable. While the institutions contend that those factors are not relevant since the main criteria to define a single like product are the physical, chemical and technical characteristics and end uses (recitals 57, 59 and 65 of the contested regulation), the Court has already ruled that the physical, technical, and chemical characteristics of the product, although important factors, do not have priority over other factors (judgment of 13 September 2010, Whirlpool Europe v Council , T‑314/06, EU:T:2010:390, paragraph 141). The institutions dispute the applicants’ arguments. In that regard, it must be noted that the basic regulation does not specify how the product or range of products which may be subject to an anti-subsidy investigation is to be defined; nor does it require an intricate classification to be made (see, to that effect, judgment of 25 September 1997, Shanghai Bicycle v Council , T‑170/94, EU:T:1997:134, paragraph 61). According to settled case-law, to which the parties both refer, the purpose of the definition of the product concerned in an anti-dumping or anti-subsidy investigation is to assist in drawing up the list of the products which will, if necessary, be subject to the imposition of anti-dumping or countervailing duties. For the purposes of that process, the institutions may take account of a number of factors, such as the physical, technical and chemical characteristics of the products, their use, interchangeability, consumer perception, distribution channels, manufacturing process, costs of production and quality (judgment of 13 September 2010, Whirlpool Europe v Council , T‑314/06, EU:T:2010:390, paragraph 138, and of 17 December 2010 in EWRIA and Others v Commission , T‑369/08, EU:T:2010:549, paragraph 82). It necessarily follows that products which are not identical may be grouped together under the same definition of the product concerned and, together, be subject to an anti-subsidy investigation (see, to that effect, judgment of 10 October 2012, Gem-Year and Jinn-Well Auto-Parts (Zhejiang) v Council , T‑172/09, not published, EU:T:2012:532, paragraph 60) . In those circumstances, the examination of whether a specific product has been validly included in the list of products which will, if necessary, be subject to the imposition of countervailing duties must be carried out in the light of the characteristics of the product concerned as defined by the institutions, not in the light of the characteristics of the products comprising the product concerned or its sub-categories (judgment of 18 November 2014, Photo USA Electronic Graphic v Council , T‑394/13, not published, EU:T:2014:964 , paragraph 30). Moreover, in the light of the indicative nature of the criteria referred to in paragraph 85 above, the institutions are not under any obligation to determine the product concerned using all of those criteria. Nor is it necessary for the analysis of each of those criteria to be capable of leading to the same result (see, to that effect, judgment of 18 November 2014, Photo USA Electronic Graphic v Council , T‑394/13, not published, EU:T:2014:964 , paragraph 51). It is necessary to ascertain, taking into account the above factors, whether the applicants are in a position to show either that the institutions made an error of assessment with regard to the factors which they decided were relevant, or that the application of other, more relevant factors would have required the exclusion of a product from the definition of the product concerned (see, to that effect, judgment of 10 October 2012, Gem-Year and Jinn-Well Auto-Parts (Zhejiang) v Council , T‑172/09, not published, EU:T:2012:532, paragraph 61). In that review, account must be taken of the fact that, in the sphere of measures to protect trade, the EU institutions enjoy a wide discretion by reason of the complexity of the economic, political and legal situations which they have to examine and that, consequently, review by the Courts of the European Union of assessments made by the institutions must be limited to establishing whether the relevant procedural rules have been complied with, whether the facts on which the contested choice is based have been accurately stated and whether there has been a manifest error of assessment of the facts or a misuse of power. In that regard, since it has already been held that the determination of the like product fell within the exercise of the wide discretion given to the institutions and was therefore subject to limited review (judgment of 25 September 1997, Shanghai Bicycle v Council , T‑170/94, EU:T:1997:134, paragraph 63), the same approach must be adopted when reviewing the merits of the definition of the product concerned (judgment of 10 October 2012, Gem-Year and Jinn-Well Auto-Parts (Zhejiang) v Council , T‑172/09, not published, EU:T:2012:532, paragraph 62; judgment of 17 March 2016, Portmeirion Group , C‑232/14, EU:C:2016:180 , paragraph 47). In the present case, first, as regards the nature of the criteria chosen by the institutions, at the outset, it follows from recitals 44, 46, 48, 56, 60 to 62, 68, and 71 of the contested regulation that the product concerned was defined in relation to its capacity to convert solar energy into electricity, which presupposes, in terms of end use, its installation in photovoltaic systems. Next, it follows, in particular from recitals 41, 46 and 48 of the contested regulation, that the criteria, on which the institutions rely, are physical, chemical and technical characteristics and the corresponding end use. While the Council wrongly contends that some of the criteria referred to in paragraph 85 above, that is to say, those used, are in principle more decisive than others (judgment of 18 November 2014, Photo USA Electronic Graphic v Council , T‑394/13, not published, EU:T:2014:964 , paragraph 41), it does not necessarily follow that the decision to rely on those criteria in the present case is vitiated by a manifest error of assessment. It must be noted that the definition of the product concerned by its capacity to convert solar energy into electricity, which presupposes an end use of integration in photovoltaic systems, is objective and the applicants have neither claimed nor demonstrated that that criterion is arbitrary or that the institutions committed a manifest error of assessment in using that definition. In addition, it follows from the judgment of 10 October 2012, Gem-Year and Jinn-Well Auto-Parts (Zhejiang) v Council , T‑172/09, not published, EU:T:2012:532, paragraph 65) that the institutions may include products under the definition of the product concerned on the ground that they have, inter alia, the same basic function. That basic criterion was moreover applied by the institutions in a consistent manner, since wafers were excluded from the definition of the product concerned as a result of the conclusion that, they do not convert, as such, solar energy into electricity (see recital 46 of the contested regulation). Having regard to the decision, which was not challenged, to investigate products capable of converting solar energy to electricity, it was not manifestly unreasonable for the institutions to rely principally on the physical, chemical and technical characteristics and end use of the products. On the contrary, those criteria appear to be particularly relevant. Furthermore, it is apparent from the contested regulation that the institutions did not disregard the other criteria. Those criteria raised by the interested parties which participated in the administrative investigation were evaluated, but their assessment was not such as to modify the institutions’ conclusions as regards the determination of the product concerned. Secondly, as regards the question whether the institutions committed a manifest error of assessment of the criteria they deemed relevant, it must be noted that while the applicants rightly claim that cells and modules are different in terms of physical characteristics, size, weight, thickness, mass, density, and indeed colour, that fact must be analysed in the light of the fact that cells are fundamental components of modules and that the characteristics of modules are broadly determined by the characteristics of the cells of which they are composed. The applicants’ arguments cannot therefore give reason to believe that the products are different, but rather that they are similar. As regards the chemical characteristics of cells and modules, the parties do not dispute that the main chemical component, that is to say, the component conferring the essential technical characteristics is polysilicon. Even if that component accounts for a mere 20% of the price of a module, that fact, if it were established by the applicants, has no bearing on the conclusion relating to the similarity of the chemical characteristics of cells and modules. As has been stated, it is necessary to assess in particular, in the present case, whether the two product categories contain the same essential component, that is to say a component conferring their essential technical characteristics. While the applicants claim that the Commission’s position as regards the relevance of the raw material was different in other investigations, it suffices to note that it is settled case-law that, where the institutions use the discretion conferred upon them by the basic regulation, they are not required to explain in detail and in advance the criteria that they intend to apply in every situation, even in cases where they create new policy options. Nor are economic operators justified in having a legitimate expectation that the criterion initially selected, which is capable of being altered by the EU institutions in the exercise of their discretion, will be maintained. Therefore, there is no need to rule on the earlier practice alleged by the applicant, as the existence of such a practice did not in itself deprive the institutions of the possibility of changing it subsequently (see, to that effect, judgments of 7 May 1987, Nippon Seiko v Council , 258/84, EU:C:1987:205, paragraphs 34 and 35, of 10 March 1992, Canon v Council , C‑171/87, EU:C:1992:106, paragraph 41, and of 17 July 1998, Thai Bicycle v Council , T‑118/96, EU:T:1998:184, paragraphs 68 and 69 and the case-law cited). The relevance of the raw material depends in particular on the basic criterion used by the institutions. In the present case, it is indisputable that the qualities of polysilicon are decisive both for cells and modules and that in their absence they cannot fulfil their function of converting solar energy into electricity. Therefore, the applicants’ argument relating to chemical properties cannot succeed. As regards technical characteristics, it is clearly apparent from the contested regulation that the specific feature of cells and modules is their capacity to convert solar energy to electricity. There is no requirement in the basic regulation that other technical functionalities should be the same for all categories of products which fall within the definition of the product concerned. If that were so, all products covered by the definition of the product concerned would have to be practically identical, which the basic regulation does not require. Furthermore, as regards the applicants’ argument that three other products capable of converting solar energy into electricity were excluded from the investigation, it suffices to note that the applicants have not put forward any argument capable of demonstrating that the institutions would be obliged to investigate all products corresponding to the criteria they adopted, or to impose definitive measures on them. It follows that the applicants’ arguments relating to technical characteristics must be rejected. As regards the applicants claim that two products do not share the same purpose or use where switching from one to another constitutes a deterrent, it suffices to note that both the cells and modules are intended to be installed in photovoltaic systems (see, inter alia, recitals 48, 68 and 71 of the contested regulation), which the applicants do not deny. In the present case, it is also significant that neither of the two product categories has any use other than integration in those systems for the purposes of producing electricity. The applicants’ arguments seeking to show that cells and modules differ in terms of their purpose, or use, must therefore be rejected. It is therefore necessary to conclude that the applicants have failed to show that the institutions committed any manifest error of assessment of the factors which they applied. Thirdly, as regards the question whether the application of other more relevant criteria than those applied by the institutions would have led to the exclusion of a product type from the definition of the product concerned, it is necessary, at the outset, to point out that the application of those other criteria could call into question the conclusions drawn by the institutions in the light of the criteria applied, only if the applicants demonstrate first that those other criteria are manifestly more relevant. It must however be noted that the applicants have adduced no evidence to that effect in the present case. That is sufficient, in the light of the assessment of the earlier arguments, to reject the present plea in law. In any event, as regards, first, the perception of consumers, recital 59 of the contested regulation, to which the applicants, in essence, refer, indicates that the main criteria used to define a single product are the same physical, chemical and technical characteristics and the end uses of the product in question, and that, in accordance with those criteria, it was concluded, on the basis of recitals 47 to 49 of that regulation, that different perceptions on the part of consumers were not considered to be a decisive factor. The applicants have not explained why that finding should be regarded as manifestly incorrect. Nor have they explained how that criterion is more relevant than those applied by the institutions (see paragraph 105 above). It is for the applicants to adduce evidence to that effect. Furthermore, it does not follow either from the basic regulation or from case-law that the assessment of the similarity of the products in the light of each of the criteria must necessarily produce the same result each time (see paragraph 88 above and the case-law cited). The applicants’ argument must therefore be rejected. Secondly, as regards distribution channels, the applicants have not shown how that criterion was relevant in the light of the institutions’ decision to investigate products capable of converting solar energy into electricity, or manifestly more relevant than those applied by the institutions (see paragraph 105 above). In any event, the applicants are wrong to claim that, in recital 57 of the contested regulation, the institutions acknowledged that cells and modules necessarily have different distribution channels. That recital indicates that the investigation showed that those channels are sometimes different and sometimes similar. The applicants have not analysed that fact in any way nor shown how it is manifestly such as to invalidate the institutions finding that the distribution channels had no effect on the definition of the product concerned in the present case. Consequently, their argument must be rejected. Thirdly, the applicants have submitted no analysis, on the one hand, capable of substantiating the claim that the production costs of cells and modules are different and, on the other hand, concerning the potential consequences of such a circumstance in respect of the inclusion of cells and modules in the definition of the product concerned. Nor have the applicants proved that that criterion would be more relevant than those applied by the institutions (see paragraph 105 above). In any event, that argument has no basis in fact, since recital 52 of the contested regulation indicates that the production of cells is the most sophisticated part of the production process and that, since the three production stages are linked, the added value does not derive from a particular stage. The question of production costs was not therefore addressed in the passage of the recital in question. Fourthly, as is rightly stated in recital 56 of the contested regulation, modules and cells, which are essential components of modules, both derive from the same production process, with the result that the question of interchangeability is not relevant in the present case. In any event, assuming that the lack of interchangeability is proved, the applicants have not shown that that was a more relevant criterion than those applied by the institutions in respect of their decision to carry out the investigation of devices capable of converting solar energy into electricity (see paragraph 105 above). It follows that the applicants’ arguments seeking to demonstrate that other more relevant criteria than those applied by the institutions would have led to the conclusion that cells and modules would not be part of the same definition of the product concerned must be rejected. In the fourth place, that finding cannot be called into question by the argument that the institutions carried out separate investigations for the two types of products. As the Council contends, the institutions carried out an investigation taking into account indicators on the basis of categories of products, which indeed corresponds to their established practice. Accordingly, the Commission compiled a single sample of exporting producers, which took into account the largest exporters in terms of volume of wafers, cells and modules, in order to ensure that the sample was representative. The institutions therefore took into account differences between the types of products. The argument must therefore be rejected. As regards the argument alleging different prices, it is true that cells cost less than modules because they are their main components. However, it must also be noted that according to recital 40 of Regulation No 1238/2013, cells account for 66% of the cost of a module. Likewise, it follows from recital 54 of the contested regulation that there is a close correlation between the prices of cells and modules which depends on the prices of polysilicon. That argument cannot therefore succeed, since those circumstances tend instead to support the conclusion that cells and modules belong to the same definition of the product concerned. In any event, the applicants have not submitted any analysis of the relevance of that criterion. Finally, it should be observed that it is the processing of wafers into cells and not cells to modules that constitutes the last substantial processing or working resulting in a new product or representing an important stage of manufacture, within the meaning of Article 24 of Regulation No 2913/92, as amended. That constitutes an additional and significant indication that cells and modules fall within the same definition of the product concerned. It follows that the third plea in law must be rejected. Consequently, the action must be dismissed in its entirety. Costs Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In accordance with Article 138(1) of those rules, institutions which have intervened in the proceedings are to bear their own costs. As the applicants have been unsuccessful, they must be ordered to bear their own costs and pay those incurred by the Council in accordance with the form of order sought by the Council. The Commission is to bear its own costs. On those grounds, THE GENERAL COURT (Fifth Chamber) hereby: 1. Dismisses the action; 2. Orders JingAo Solar Co. Ltd, and the other applicants whose names appear in the annex to bear their own costs and to pay those incurred by the Council of the European Union; 3. Orders the European Commission to bear its own costs. Dittrich Schwarcz Tomljenović Delivered in open court in Luxembourg on 28 February 2017. Registrar President E. Coulon H. Kanninen * Language of the case: English. © European Union The source of this judgment is the Europa web site. The information on this site is subject to a information found here: Important legal notice . This electronic version is not authentic and is subject to amendment. 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