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,

5.12.2013 | EN | Official Journal of the European Union | L 325/214 ---|---|---|--- * * * 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) 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: Article 1 The undertaking offered by the exporting producers listed in the Annex of this Decision together with the China Chamber of Commerce for Import and Export of Machinery and Electronic Products (CCCME), 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, is hereby accepted. Article 2 This Decision shall enter into force on 6 December 2013. Done at Brussels, 4 December 2013. For the Commission The President José Manuel BARROSO * * * (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. * * * ANNEX List of companies: Name of the company | TARIC additional code ---|--- Jiangsu Aide Solar Energy Technology Co. Ltd | B798 Alternative Energy (AE) Solar Co. Ltd | B799 Anhui Chaoqun Power Co. Ltd | B800 Anji DaSol Solar Energy Science & Technology Co. Ltd | B802 Anhui Schutten Solar Energy Co. Ltd Quanjiao Jingkun Trade Co. Ltd | B801 Anhui Titan PV Co. Ltd | B803 Xi'an SunOasis (Prime) Company Limited TBEA SOLAR CO. LTD XINJIANG SANG'O SOLAR EQUIPMENT | B804 CSI Solar Power (China) Inc. Canadian Solar Manufacturing (Changshu) Inc. Canadian Solar Manufacturing (Luoyang) Inc. CSI Cells Co. Ltd | B805 Changzhou NESL Solartech Co. Ltd | B806 Changzhou Shangyou Lianyi Electronic Co. Ltd | B807 Changzhou Trina Solar Energy Co. Ltd Trina Solar (Changzhou) Science & Technology Co. Ltd Changzhou Youze Technology Co. Ltd Trina Solar Energy (Shanghai) Co. Ltd Yancheng Trina Solar Energy Technology Co. Ltd | B791 CHINALAND SOLAR ENERGY CO. LTD | B808 ChangZhou EGing Photovoltaic Technology Co. Ltd | B811 CIXI CITY RIXING ELECTRONICS CO. LTD. ANHUI RINENG ZHONGTIAN SEMICONDUCTOR DEVELOPMENT CO. LTD. HUOSHAN KEBO ENERGY & TECHNOLOGY CO. LTD. | B812 CNPV Dongying Solar Power Co. Ltd | B813 CSG PVtech Co. Ltd | B814 China Sunergy (Nanjing) Co. Ltd CEEG Nanjing Renewable Energy Co. Ltd CEEG (Shanghai) Solar Science Technology Co. Ltd China Sunergy (Yangzhou) Co. Ltd China Sunergy (Shanghai) Co. Ltd | B809 Chint Solar (Zhejiang) Co. Ltd | B810 Delsolar (Wujiang) Ltd | B792 Dongfang Electric (Yixing) MAGI Solar Power Technology Co. Ltd | B816 EOPLLY New Energy Technology Co. Ltd SHANGHAI EBEST SOLAR ENERGY TECHNOLOGY CO. LTD JIANGSU EOPLLY IMPORT & EXPORT CO. LTD | B817 Era Solar Co. Ltd | B818 ET Solar Industry Limited ET Energy Co. Ltd | B819 GD Solar Co. Ltd | B820 Greenway Solar-Tech (Shanghai) Co. Ltd Greenway Solar-Tech (Huaian) Co. Ltd | B821 Konca Solar Cell Co. Ltd Suzhou GCL Photovoltaic Technology Co. Ltd Jiangsu GCL Silicon Material Technology Development Co. Ltd Jiangsu Zhongneng Polysilicon Technology Development Co. Ltd GCL-Poly (Suzhou) Energy Limited GCL-Poly Solar Power System Integration (Taicang) Co. Ltd GCL SOLAR POWER (SUZHOU) LIMITED GCL Solar System (Suzhou) Limited | B850 Guodian Jintech Solar Energy Co. Ltd | B822 Hangzhou Bluesun New Material Technology Co. Ltd | B824 Hangzhou Zhejiang University Sunny Energy Science and Technology Co. Ltd Zhejiang Jinbest Energy Science and Technology Co. Ltd | B825 Hanwha SolarOne (Qidong) Co. Ltd | B826 Hengdian Group DMEGC Magnetics Co. Ltd | B827 HENGJI PV-TECH ENERGY CO. LTD | B828 Himin Clean Energy Holdings Co. Ltd | B829 Jetion Solar (China) Co. Ltd Junfeng Solar (Jiangsu) Co. Ltd Jetion Solar (Jiangyin) Co. Ltd | B830 Jiangsu Green Power PV Co. Ltd | B831 Jiangsu Hosun Solar Power Co. Ltd | B832 Jiangsu Jiasheng Photovoltaic Technology Co. Ltd | B833 Jiangsu Runda PV Co. Ltd | B834 Jiangsu Sainty Photovoltaic Systems Co. Ltd Jiangsu Sainty Machinery Imp. And Exp. Corp. Ltd | B835 Jiangsu Seraphim Solar System Co. Ltd | B836 Jiangsu Shunfeng Photovoltaic Technology Co. Ltd Changzhou Shunfeng Photovoltaic Materials Co. Ltd Jiangsu Shunfeng Photovoltaic Electronic Power Co. Ltd | B837 Jiangsu Sinski PV Co. Ltd | B838 Jiangsu Sunlink PV Technology Co. Ltd | B839 Jiangsu Zhongchao Solar Technology Co. Ltd | B840 Jiangxi Risun Solar Energy Co. Ltd | B841 Jiangxi LDK Solar Hi-Tech Co. Ltd LDK Solar Hi-Tech (Nanchang) Co. Ltd LDK Solar Hi-Tech (Suzhou) Co. Ltd | B793 Jiangyin Hareon Power Co. Ltd Hareon Solar Technology Co. Ltd Taicang Hareon Solar Co. Ltd Hefei Hareon Solar Technology Co. Ltd Jiangyin Xinhui Solar Energy Co. Ltd Altusvia Energy (Taicang) Co. Ltd | B842 Jiangyin Shine Science and Technology Co. Ltd | B843 JingAo Solar Co.Ltd Shanghai JA Solar Technology Co. Ltd JA Solar Technology Yangzhou Co. Ltd Hefei JA Solar Technology Co. Ltd Shanghai JA Solar PV Technology Co. Ltd | B794 Jinko Solar Co. Ltd Jinko Solar Import and Export Co. Ltd ZHEJIANG JINKO SOLAR CO. LTD ZHEJIANG JINKO SOLAR TRADING CO. LTD | B845 Jinzhou Yangguang Energy Co. Ltd Jinzhou Huachang Photovoltaic Technology Co. Ltd Jinzhou Jinmao Photovoltaic Technology Co. Ltd Jinzhou Rixin Silicon Materials Co. Ltd Jinzhou Youhua Silicon Materials Co. Ltd | B795 Juli New Energy Co. Ltd | B846 Jumao Photonic (Xiamen) Co. Ltd | B847 King-PV Technology Co. Ltd | B848 Kinve Solar Power Co. Ltd (Maanshan) | B849 Lightway Green New Energy Co. Ltd Lightway Green New Energy (Zhuozhou) Co. Ltd | B851 MOTECH (SUZHOU) RENEWABLE ENERGY CO. LTD | B852 Nanjing Daqo New Energy Co. Ltd | B853 NICE SUN PV CO. LTD LEVO SOLAR TECHNOLOGY CO. LTD | B854 Ningbo Huashun Solar Energy Technology Co. Ltd | B856 Ningbo Jinshi Solar Electrical Science & Technology Co. Ltd | B857 Ningbo Komaes Solar Technology Co. Ltd | B858 Ningbo Osda Solar Co. Ltd | B859 Ningbo Qixin Solar Electrical Appliance Co. Ltd | B860 Ningbo South New Energy Technology Co. Ltd | B861 Ningbo Sunbe Electric Ind Co. Ltd | B862 Ningbo Ulica Solar Science & Technology Co. Ltd | B863 Perfectenergy (Shanghai) Co. Ltd | B864 Perlight Solar Co. Ltd | B865 Phono Solar Technology Co. Ltd Sumec Hardware & Tools Co. Ltd | B866 RISEN ENERGY CO. LTD | B868 SHANDONG LINUO PHOTOVOLTAIC HI-TECH CO. LTD | B869 SHANGHAI ALEX SOLAR ENERGY SCIENCE & TECHNOLOGY CO. LTD SHANGHAI ALEX NEW ENERGY CO. LTD | B870 Shanghai BYD Co. Ltd BYD(Shangluo)Industrial Co.Ltd | B871 Shanghai Chaori Solar Energy Science & Technology Co. Ltd Shanghai Chaori International Trading Co. Ltd | B872 Propsolar (Zhejiang) New Energy Technology Co. Ltd Shanghai Propsolar New Energy Co. Ltd | B873 SHANGHAI SHANGHONG ENERGY TECHNOLOGY CO. LTD | B874 SHANGHAI SOLAR ENERGY S&T CO. LTD Shanghai Shenzhou New Energy Development Co. Ltd Lianyungang Shenzhou New Energy Co. Ltd | B875 Shanghai ST-Solar Co. Ltd Jiangsu ST-Solar Co. Ltd | B876 Shenzhen Sacred Industry Co. Ltd | B878 Shenzhen Topray Solar Co. Ltd Shanxi Topray Solar Co. Ltd Leshan Topray Cell Co. Ltd | B880 Sopray Energy Co. Ltd Shanghai Sopray New Energy Co. Ltd | B881 SUN EARTH SOLAR POWER CO. LTD NINGBO SUN EARTH SOLAR POWER CO. LTD Ningbo Sun Earth Solar Energy Co. Ltd | B882 SUZHOU SHENGLONG PV-TECH CO. LTD | B883 TDG Holding Co. Ltd | B884 Tianwei New Energy Holdings Co. Ltd Tianwei New Energy(Chengdu) PV Module Co. Ltd Tianwei New Energy (Yangzhou) Co. Ltd | B885 Wenzhou Jingri Electrical and Mechanical Co. Ltd | B886 Shanghai Topsolar Green Energy Co. Ltd | B877 Shenzhen Sungold Solar Co. Ltd | B879 Wuhu Zhongfu PV Co. Ltd | B889 Wuxi Saijing Solar Co. Ltd | B890 Wuxi Shangpin Solar Energy Science and Technology Co. Ltd | B891 Wuxi Solar Innova PV Co. Ltd | B892 Wuxi Suntech Power Co. Ltd Suntech Power Co. Ltd Wuxi Sunshine Power Co. Ltd Luoyang Suntech Power Co. Ltd Zhenjiang Rietech New Energy Science Technology Co. Ltd Zhenjiang Ren De New Energy Science Technology Co. Ltd | B796 Wuxi Taichang Electronic Co. Ltd Wuxi Machinery & Equipment Import & Export Co. Ltd Wuxi Taichen Machinery & Equipment Co. Ltd | B893 Xi'an Huanghe Photovoltaic Technology Co. Ltd State-run Huanghe Machine-Building Factory Import and Export Corporation Shanghai Huanghe Fengjia Photovoltaic Technology Co. Ltd | B896 Xi'an LONGi Silicon Materials Corp. Wuxi LONGi Silicon Materials Co. Ltd | B897 Years Solar Co. Ltd | B898 Yingli Energy (China) Co. Ltd Baoding Tianwei Yingli New Energy Resources Co. Ltd Hainan Yingli New Energy Resources Co. Ltd Hengshui Yingli New Energy Resources Co. Ltd Tianjin Yingli New Energy Resources Co. Ltd Lixian Yingli New Energy Resources Co. Ltd Baoding Jiasheng Photovoltaic Technology Co. Ltd Beijing Tianneng Yingli New Energy Resources Co. Ltd Yingli Energy (Beijing) Co. Ltd | B797 Yuhuan BLD Solar Technology Co. Ltd Zhejiang BLD Solar Technology Co. Ltd | B899 Yuhuan Sinosola Science & Technology Co. Ltd | B900 Zhangjiagang City SEG PV Co. Ltd | B902 Zhejiang Fengsheng Electrical Co. Ltd | B903 Zhejiang Global Photovoltaic Technology Co. Ltd | B904 Zhejiang Heda Solar Technology Co. Ltd | B905 Zhejiang Jiutai New Energy Co. Ltd Zhejiang Topoint Photovoltaic Co. Ltd | B906 Zhejiang Kingdom Solar Energy Technic Co. Ltd | B907 Zhejiang Koly Energy Co. Ltd | B908 Zhejiang Mega Solar Energy Co. Ltd Zhejiang Fortune Photovoltaic Co. Ltd | B910 Zhejiang Shuqimeng Photovoltaic Technology Co. Ltd | B911 Zhejiang Shinew Photoelectronic Technology Co. Ltd | B912 Zhejiang Sunflower Light Energy Science & Technology Limited Liability Company Zhejiang Yauchong Light Energy Science & Technology Co. Ltd | B914 Zhejiang Sunrupu New Energy Co. Ltd | B915 Zhejiang Tianming Solar Technology Co. Ltd | B916 Zhejiang Trunsun Solar Co. Ltd Zhejiang Beyondsun PV Co. Ltd | B917 Zhejiang Wanxiang Solar Co. Ltd WANXIANG IMPORT & EXPORT CO LTD | B918 Zhejiang Xiongtai Photovoltaic Technology Co. Ltd | B919 ZHEJIANG YUANZHONG SOLAR CO. LTD | B920 RENESOLA ZHEJIANG LTD RENESOLA JIANGSU LTD | B921 Zhongli Talesun Solar Co. Ltd | B922 ZNSHINE PV-TECH CO. LTD | B923 * * *