Council Implementing Regulation (EU) No 1238/2013 of 2 December 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People's Republic of China

COUNCIL IMPLEMENTING REGULATION (EU) No 1238/2013

of 2 December 2013

imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People's Republic of China

Article 1

The following product types are excluded from the definition of the product concerned:

• —solar chargers that consist of less than six cells, are portable and supply electricity to devices or charge batteries,

• —thin film photovoltaic products,

• —crystalline silicon photovoltaic products that are permanently integrated into electrical goods, where the function of the electrical goods is other than power generation, and where these electrical goods consume the electricity generated by the integrated crystalline silicon photovoltaic cell(s),

• —modules or panels with a output voltage not exceeding 50 V DC and a power output not exceeding 50 W solely for direct use as battery chargers in systems with the same voltage and power characteristics.

• —it did not export to the Union the product described in paragraph 1 in the period between 1 July 2011 and 30 June 2012 (investigation period),

• —it is not related to any exporter or producer in the People's Republic of China which is subject to the anti-dumping measures imposed by this Regulation,

• —it has actually exported to the Union the product concerned after the investigation period on which the measures are based, or it has entered into an irrevocable contractual obligation to export a significant quantity to the Union,

paragraph 2 may be amended by adding the new exporting producer to the cooperating companies not included in the sample and thus subject to the weighted average duty of 41,3 %.

Article 2

Article 3

• (a)a company listed in the Annex to Implementing Decision 2013/707/EU manufactured, shipped and invoiced directly the products referred to above or via its related company also listed in the Annex to Implementing Decision 2013/707/EU either to their related companies in the Union acting as an importer and clearing the goods for free circulation in the Union or to the first independent customer acting as an importer and clearing the goods for free circulation in the Union;

• (b)such imports are accompanied by an undertaking invoice which is a commercial invoice containing at least the elements and the declaration stipulated in Annex III of this Regulation;

• (c)such imports are accompanied by an Export Undertaking Certificate according to Annex IV of this Regulation; and

• (d)the goods declared and presented to customs correspond precisely to the description on the undertaking invoice.

• (a)whenever it is established, in respect of imports described in paragraph 1, that one or more of the conditions listed in that paragraph are not fulfilled; or

• (b)when the Commission withdraws its acceptance of the undertaking pursuant to Article 8(9) of Regulation (EC) No 1225/2009 in a Regulation or Decision which refers to particular transactions and declares the relevant undertaking invoices as invalid.

Article 4

The companies from which undertakings are accepted by the Commission and whose names are listed in the Annex to Decision 2013/707/EU and subject to certain conditions specified therein, will also issue an invoice for transactions which are not exempted from the anti-dumping duties. This invoice shall be a commercial invoice containing at least the elements stipulated in Annex V of this Regulation.

Article5

This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.

It shall expire on 7 December 2015.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

ANNEX I

ANNEX II

ANNEX III

The following elements shall be indicated in the Commercial Invoice accompanying the Company's sales to the European Union of goods which are subject to the Undertaking:

• 1.The heading ‘COMMERCIAL INVOICE ACCOMPANYING GOODS SUBJECT TO AN UNDERTAKING’.

• 2.The name of the Company issuing the Commercial Invoice.

• 3.The Commercial Invoice number.

• 4.The date of issue of the Commercial Invoice.

• 5.The TARIC additional code under which the goods on the invoice are to be customs-cleared at the European Union frontier.

• 6.The exact plain language description of the goods and: —the product code number (PCN), —technical specifications of the PCN, —the company product code number (CPC), —CN code, —quantity (to be given in units expressed in Watt).

• 7.The description of the terms of the sale, including: —price per unit (Watt), —the applicable payment terms, —the applicable delivery terms, —total discounts and rebates.

• 8.Name of the Company acting as an importer to which the invoice is issued directly by the Company.

• 9.The name of the official of the Company that has issued the Commercial Invoice and the following signed declaration: ‘I, the undersigned, certify that the sale for direct export to the European Union of the goods covered by this invoice is being made within the scope and under the terms of the Undertaking offered by [COMPANY], and accepted by the European Commission through Implementing Decision 2013/707/EU. I declare that the information provided on this invoice is complete and correct.’

ANNEX IV

EXPORT UNDERTAKING CERTIFICATE

The following elements shall be indicated in the Export Undertaking Certificate to be issued by CCCME for each Commercial Invoice accompanying the Company's sales to the European Union of goods which are subject to the Undertaking:

• 1.The name, address, fax and telephone number of the China Chamber of Commerce for Import & Export of Machinery & Electronic Products (CCCME).

• 2.The name of the company mentioned in the Annex to Commission Implementing Decision 2013/707/EU issuing the Commercial Invoice.

• 3.The Commercial Invoice number.

• 4.The date of issue of the Commercial Invoice.

• 5.The TARIC additional code under which the goods on the invoice are to be customs cleared at the European Union frontier.

• 6.The exact description of the goods, including: —the product code number (PCN), —the technical specification of the goods, the company product code number (CPC) (if applicable), —CN code,

• 7.The precise quantity in units exported expressed in Watt.

• 8.The number and expiry date (three months after issuance) of the certificate.

• 9.The name of the official of CCCME that has issued the certificate and the following signed declaration: ‘I, the undersigned, certify that this certificate is given for direct exports to the European Union of the goods covered by the Commercial Invoice accompanying sales made subject to the undertaking and that the certificate is issued within the scope and under the terms of the undertaking offered by [COMPANY] and accepted by the European Commission through Implementing Decision 2013/707/EU. I declare that the information provided in this certificate is correct and that the quantity covered by this certificate is not exceeding the threshold of the undertaking.’

• 10.Date.

• 11.The signature and seal of CCCME.

ANNEX V

The following elements shall be indicated in the Commercial Invoice accompanying the Company's sales to the European Union of goods which are subject to the anti-dumping duties:

• 1.The heading ‘COMMERCIAL INVOICE ACCOMPANYING GOODS SUBJECT TO ANTI-DUMPING AND COUNTERVAILING DUTIES’.

• 2.The name of the Company issuing the Commercial Invoice.

• 3.The Commercial Invoice number.

• 4.The date of issue of the Commercial Invoice.

• 5.The TARIC additional code under which the goods on the invoice are to be customs-cleared at the European Union frontier.

• 6.The exact plain language description of the goods and: —the product code number (PCN), —technical specifications of the PCN, —the company product code number (CPC), —CN code, —quantity (to be given in units expressed in Watt).

• 7.The description of the terms of the sale, including: —price per unit (Watt), —the applicable payment terms, —the applicable delivery terms, —total discounts and rebates.

• 8.The name and signature of the official of the Company that has issued the Commercial Invoice.

[^E0001]: (¹) OJ L 343, 22.12.2009, p. 51.

[^E0002]: (²) Commission Regulation (EU) No 513/2013 of 4 June 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 making these imports originating in or consigned from the People's Republic of China subject to registration (OJ L 152, 5.6.2013, p. 5).

[^E0003]: (³) Commission Regulation (EU) No 182/2013 of 1 March 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 L 61, 5.3.2013, p. 2).

[^E0004]: (⁴) Commission Decision 2013/423/EU of 2 August 2013 accepting an undertaking offered in connection with the anti-dumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the People's Republic of China (OJ L 209, 3.8.2013, p. 26).

[^E0005]: (⁵) See page 214 of this Official Journal.

[^E0006]: (⁶) Appelate Body Report, European Communities — Measures Affecting Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, adopted 5 April 2001.

[^E0007]: (⁷) Case T-401/06 Brosmann Footwear (HK) Ltd and others vs Council; Case T-314/06 Whirlpool Europe vs Council.

[^E0008]: (⁸) OJ C 269, 6.9.2012, p. 5.

[^E0009]: (⁹) Reference number CEI/IEC 61730-1:2004.

[^E0010]: (¹⁰) Footwear with uppers of leather originating in the People's Republic of China and Vietnam, Commission Regulation (EC) No. 553/2006 of 23 March 2006 (prov.); Council Regulation (EC) No. 1472/2006 of 5 October 2006 (def.).

[^E0011]: (¹¹) Case T-401/06, Brosmann Footwear (HK) Ltd. vs Council of the European Union, para 133.

[^E0012]: (¹²) Case T-401/06, Brosmann Footwear (HK) Ltd. vs Council of the European Union, para 135.

[^E0013]: (¹³) Regulation (EU) 1168/2012 of the European Parliament and of the Council of 12 December 2012, OJ L 344, 14.12.2012, p. 1.

[^E0014]: (¹⁴) Firstpost, 12 June 2013.

[^E0015]: (¹⁵) JRC Scientific and Policy Report, PV Status Report 2012, p. 14.

[^E0016]: (¹⁶) Indian Import statistics, Commodity Code 8541 40 11 Solar Cells/Photovoltaic cells whether or not assembled in module/panel. The values are given for the Indian business year, i.e. April-March. Information on volumes is given in pieces, but cells and modules are reported together. Since the value of a module is typically around 100 times larger than the value of a cell, the information on volumes is not considered reliable.

[^E0017]: (¹⁷) Case C-16/90, Detlef Nölle vs Hauptzollamt Bremen-Freihafen, ECR I-5163.

[^E0019]: (¹⁸) Since the period under registration is significantly shorter than the IP, a comparison of monthly average values is more useful than a comparison of total volumes of the two respective periods.

[^E0020]: (¹⁹) 13 986 MW of modules + 1 019 MW of cells allocated to 12 months.