With Regulation (EU) No. 866/2015 of 4 June 2014 the European Commission revokes the acceptance of the Undertakings of three well-known manufacturers previously confirmed by implementing decision No. 2013/707/EU.
Exemption from anti-dumping duties on solar modules by undertakings
Within the scope of the European anti-dumping duties on imports of photovoltaic modules of cristalline silicon and their key parts (cells) with origin in the People’s Republic of China or sent from there producers of such goods could make Undertakings with the result that their goods were exempted from anti-dumping duties.
The Undertaking included, according to the Commission, not only the obligation to observe certain minimum import prices as well as analogue sale limits, but also the obligation of a vast documentation and report.
Reasons for the withdrawal of the acceptance of undertakings
In its Regulation (EU) No. 866/2015, which I can recommend as very worth reading, the Commission now makes clear why it is of the opinion that three particular manufacturers have infringed their obligation. The Commission started from the fact that, to assess whether an obligation was not fulfilled, it is not necessary that there is a minimum percentage of sales. Upon reversion this means that a withdrawal is possible, even if only small quantities of goods are concerned.
A withdrawal is also possible if the Commission is of the opinion that it is practically impossible to control whether the obligation was fulfilled. It is up to the enterprise to ensure that the Commission is able to control the fulfillment.
Moreover, the acceptance of the obligation is based on trust and any action by which the relationship of trust with the European Commission is harmed, shall justify the withdrawal of the undertaking.
Possible consequences for other enterprises
The Commission makes clear that there is no question of systematic breaches of the obligation by a larger number of exporting manufacturers or by the China Chamber of Commerce for Import and Export of Machinery and Electronic Products (CCCME). Therefore, there was no reason to withdraw the acceptance of the undertakings for all the exporting manufacturers and the CCCME.
The withdrawal shall take effect on 6 June 2015, which means that from this point of time anti-dumping duties have to be paid for imports of goods of the enterprises concerned. Thus, from this day the importers and/or buyers of these goods have to pay the anti-dumping duties which are applicable to the goods of all the other manufacturers, even if the minimum price limits are observed.
The Commission was of the opinion that the possibility of withdrawal of a price undertaking is a risk in trade which is part of the normal import business. Whether an importing enterprise can nevertheless rely on the protection of legitimate expectations should be examined in every single case individually, as we see it.
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