The European Court of Justice (ECJ) today published the details of appeals lodged by the European Commission and Council of Ministers against a ruling by the court in July which found in favor of Chinese solar manufacturer Jiangsu Seraphim.
The dispute centers on the application of a minimum price undertaking offered by the Chinese Chamber of Commerce for Import and Export of Machinery and Electronic Products which was accepted by the EU in August 2013 after the bloc had imposed anti-dumping and anti-subsidy duties on imported Chinese solar power components.
Under the terms of the undertaking, Chinese exporters agreed a minimum price for their products which meant they would not be penalized by anti-dumping and countervailing duties which amounted to 47.7%.
In October 2016, the European Commission notified Jiangsu Seraphim it would have application of the price undertaking withdrawn from its products and the commission intended to invalidate invoices on the relevant products and apply the relevant duties. The Changzhou-based manufacturer disputed the right of the commission to take such action and said the intent to collect duties owed on already-exported products was a retroactive application of the penalties and, therefore, unlawful.
In July this year, the ECJ upheld the claim by Jiangsu Seraphim that duties could not be applied to products the company had already distributed before being notified its access to the price undertaking was being withdrawn. The court said the basic EU anti-dumping and anti-subsidy legislation cited by the commission – in an argument supported by the European Council – stipulated the rules for applying such price undertakings should include specific examples of the consequences of breaches of such undertakings and in this case had not done so.
The Commission was ordered by the court to pay its own costs and those of Jiangsu Seraphim and the council was ordered to pay its own costs.
The two EU bodies in September lodged an appeal against that decision, the details of which have been published by the ECJ today.
Among its reasons for appeal, the council stated its belief the court had wrongly paid heed to basic legislation which applied to the general course of anti-dumping and anti-subsidy procedures when the case in question concerned a different scenario – the breach of a price undertaking.
The commission's appeal called for the original application, by Jiangsu Seraphim, to be rejected and the July ruling to be set aside. The council's appeal made a similar request but also left open the option of referring the matter back to the ECJ for reconsideration.
pv magazine has approached Jiangsu Seraphim for comment.
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