HTML PUBLIC "-//W3C//DTD HTML 4.01 Transitional//EN"L 325/66
EN
Official Journal of the European Union
5.12.2013
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
THE COUNCIL OF THE EUROPEAN UNION,
arriving at a mutually agreed solution. The GOC accepted
the offer of consultations which were subsequently held.
During the consultations, no mutually agreed solution
Having regard to the Treaty on the Functioning of the European
could be arrived at. However, due note was taken of
Union,
comments made by the GOC regarding the non-counter
vailability of the schemes listed in the complaint.
Following the consultations, submissions were received
Having regard to Council Regulation (EC) No 597/2009 of 11
from the GOC.
June 2009 on protection against subsidised imports from coun
tries not members of the European Community (1), and in par
ticular Article 15 thereof,
1.2. Parallel anti-dumping proceeding
Having regard to the proposal from the European Commission,
(4)
On 6 September 2012, the Commission had announced
after consulting the Advisory Committee,
by a notice published in the Official Journal of the European
Union (3), the initiation of an anti-dumping proceeding
concerning imports into the Union of crystalline silicon
Whereas:
photovoltaic modules and key components (i.e. cells and
wafers) originating in the PRC.
(5)
On 6 June 2013, the Commission, by Commission Regu
1. PROCEDURE
lation (EU) No 513/2013 (4), imposed a provisional anti
dumping duty on imports of crystalline silicon photovol
taic modules and key components (i.e. cells and wafers)
1.1. Initiation
originating in or consigned from the PRC (‘Provisional
anti-dumping Regulation’).
(1)
On 8 November 2012, the European Commission (the
(6)
The injury analyses performed in the present anti-subsidy
‘Commission’) announced by a notice published in the
and the parallel anti-dumping investigation are based on
Official Journal of the European Union (2) (‘Notice of Initia
the same definition of the Union industry, the representa
tion’), the initiation of an anti-subsidy proceeding with
tive Union producers and the investigation period and
regard to imports into the Union of crystalline silicon
led to identical conclusions unless otherwise specified.
photovoltaic modules and key components (i.e. cells and
This was considered appropriate in order to streamline
wafers) originating in the People's Republic of China
the injury analysis and to reach consistent findings in
(‘PRC’ or the ‘country concerned’).
both proceedings. For this reason, comments on injury
aspects put forward in any of these proceedings were
taken into account in both proceedings.
(2)
The anti-subsidy proceeding was initiated following a
complaint lodged on 26 September 2012 by EU ProSun
(‘the complainant’) on behalf of producers representing in
this case more than 25 % of the total Union production
1.3. Registration
of crystalline silicon photovoltaic modules and key
components. The complaint contained prima facie
(7)
Following a request by the complainant supported by the
evidence of subsidisation of the said product and of
required evidence the Commission adopted on 1 March
material injury resulting therefrom, which was considered
2013 Commission Regulation (EU) No 182/2013 (5)
sufficient to justify the initiation of a proceeding.
making imports of crystalline silicon PV modules and
key components (i.e. cells and wafers) originating in or
consigned from the PRC subject to registration as
(3)
Prior to the initiation of the proceeding and in accord
of 6 March 2013.
ance with Article 10(7) of Regulation (EC) No 597/2009
(‘the basic Regulation’), the Commission notified the
(3) OJ C 269, 6.9.2012, p. 5.
Government of the PRC (‘the GOC’) that it had received a
(4) Commission Regulation (EU) No 513/2013 of 4 June 2013 imposing a
properly documented complaint alleging that subsidised
provisional anti-dumping duty on imports of crystalline silicon photo
imports of crystalline silicon photovoltaic modules and
voltaic modules and key components (i.e. cells and wafers) originating
in or consigned from the People's Republic of China and amending
key components originating in the PRC were causing
Regulation (EU) No 182/2013 making these imports originating in or
material injury to the Union industry. The GOC was
consigned from the People's Republic of China subject to registration
invited for consultations with the aim of clarifying the
(OJ L 152, 5. 6.2013, p. 5).
situation as regards the contents of the complaint and
(5) Commission Regulation (EU) No 182/2013 of 1 March 2013 making
imports of crystalline silicon photovoltaic modules and key compo
nents (i.e. cells and wafers) originating in or consigned from the
(1) OJ L 188, 18.7.2009, p. 93.
People's Republic of China subject to registration (OJ L 61, 5.3.2013,
(2) OJ C 340, 8.11.2012, p. 13.
p. 2).

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5.12.2013
EN
Official Journal of the European Union
L 325/67
(8)
Some interested parties claimed that the decision for
exporting producers not included in the sample, as
registration of imports was unfounded, as the conditions
required by Articles 15(2) and 15(3) of the basic Regu
were not met pursuant to Article 24(5) of the basic
lation. As explained in recital (46) below, the Commis
Regulation. However, these claims were not substantiated
sion excluded wafers from the product scope in the defi
or based on factual evidence. At the time the decision
nitive stage of the investigation. Certain companies were
was taken to register imports the Commission had suffi
selected into the sample on the basis of their largest
cient prima facie evidence justifying the need to register
volumes of exports of wafers. However, taking into
imports, in particular a sharp increase both in terms of
account the fact that the Commission had already investi
absolute imports and in terms of market share. The
gated these companies, verified the data submitted by
claims in this regard had therefore to be rejected.
them and also the fact that all of these companies had
significant exports of modules and/or cells it was not
deemed necessary to amend the sample.
1.4. Parties concerned by the proceeding
(13)
The number of sampled exporting producers was even
tually deemed to be eight companies/groups. This is
because, although it was initially reported that the Jinko
(9)
The Commission officially advised the complainants,
Solar Co. Ltd and Renesola Jiangsu Ltd were related, it
other known Union producers, the known exporting
was subsequently established that they were not.
producers in the PRC, the PRC authorities and known
importers of the initiation of the proceeding. Interested
parties were given the opportunity to make their views
known in writing and to request a hearing within the
time limit set in the Notice of Initiation.
(b) Sampling of Union producers
(10)
In view of the apparent high number of exporting produ
cers, Union producers and unrelated importers, all
known exporting producers and unrelated importers
were asked to make themselves known to the Commis
(14)
The Commission announced in the Notice of Initiation
sion and to provide, as specified in the Notice of Initia
that it had provisionally selected a sample of Union
tion, basic information on their activities related to the
producers. All known Union producers and known
product concerned during the investigation period as
producers' association were informed about the selection
defined in recital (38) below. This information was
of the provisional sample of Union producers. This provi
requested under Article 27 of the basic Regulation in
sional sample consisted of nine Union producers out of
order to enable the Commission to decide whether
the around 215 Union producers that were known prior
sampling would be necessary and if so, to select samples.
to the initiation of the investigation to produce the like
The authorities of the PRC were also consulted.
product, selected on the basis of the largest representative
volume of production, taking into account the sales
volume and the geographical location that could reason
ably be investigated within the time available. It was
ensured that the sample covers both vertically integrated
and non-integrated Union producers. Interested parties
(a) Sampling of exporting producers
were also invited to make their views known on the
provisional sample.
(11)
Initially 121 Chinese exporting producers/groups of
producers provided the requested information and agreed
to be included in a sample. The cooperating companies
(15)
Several interested parties raised the following objections
represent more than 80 % of the total Chinese export
concerning the provisional sample of Union producers:
volume. On the basis of the information received from
the exporting producers and in accordance with Article
27 of the basic Regulation the Commission initially
proposed a sample of seven exporting producers/groups
(i) Some parties submitted that the limited information
of exporting producers.
provided with regard to the provisionally selected
sample was insufficient and prevented them from
making any meaningful comments on the proposed
(12)
The selected sample of seven groups of companies
sample. In particular, they criticised that the identity
consists of the three cooperating exporters with the
of the Union producers was kept confidential and
largest volume of exports of modules, the two coop
requested that the Member States where the sampled
erating exporters with the largest volume of exports of
Union producers were located should be disclosed,
cells and the two cooperating exporters with the largest
as well as the selected Union producers' share of
volume of exports of wafers. The sample of these seven
production in the total production volume of PV
groups of exporting producers served as the basis to
modules and cells and the percentage of production
determine the level of subsidisation for those groups as
and sales represented by the sampled companies
well as the level of subsidisation for all cooperating
individually and by the sample as a whole.

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L 325/68
EN
Official Journal of the European Union
5.12.2013
(ii) The method used for the selection of the sample was
Union producers selected in the sample could easily
contested on the grounds that it ‘confuses three
reveal the identity of the producer concerned and the
different steps’, namely the support for the initiation
requests in this regard had to be rejected.
of the investigation, definition of the Union industry
and sampling. Therefore, it was claimed that it was
unclear whether the Union industry was already
defined at the time of the selection of the sample,
and therefore whether the sample could be consid
(17)
The Commission did not ‘confuse’ the determination of
ered as representative. Without defining the Union
the support for the initiation of the investigation, the
industry at sampling stage, interested parties were
determination of the Union industry and the selection of
prevented from verifying whether the provisional
provisional sample as these steps remained independent
sample was representative, and thus whether on the
from each other and were decided upon separately. It was
basis of the sample, the situation of the Union
not demonstrated to what extent the use of production
industry during the investigation period as defined in
and sales data provided by the Union producers in the
recital (38) below could be correctly assessed.
context of the examination of the support for the initia
Furthermore, it was claimed that it was inappropriate
tion of the investigation had affected the representativity
to select the provisional sample on the basis of the
of the sample. At initiation the Union industry had
replies of the Union producers to the examination of
indeed been provisionally defined. All available informa
the support for the initiation of the investigation.
tion concerning the Union producers, including informa
tion provided in the complaint and data collected from
Union producers and other parties before the initiation
of the investigation, was used in order to provisionally
establish the total Union production for the investigation
(iii) It was also claimed that the provisional sample was
period, as defined in recital (38) below.
selected merely on the basis of companies which
have expressed their support to the present investiga
tion.
(18)
All Union producers that replied to questions related to
the support for the initiation of the investigation were
(iv) One party claimed that, since vertically integrated
considered for the sample, regardless of whether they
companies are included in the provisional sample,
supported, opposed or expressed no opinion on the
the production volume of cells may be double or
investigation. This claim was therefore rejected.
triple counted which casts doubts on the overall
representativity of the sample. It was requested that
for vertically integrated producers only the produc
tion volume of modules should be counted, but not
the volume of cells.
(19)
The question of double/triple counting has been consid
ered when the provisional sample was selected. It
appeared that excluding production and sales of cells of
the vertically integrated Union producers would not take
into consideration the part of the production of cells sold
(v) The same party alleged that the data on which the
on the free market. It was therefore considered that
selection of the sample was based were at least
excluding sales of cells from the total production volume
partly unreliable which could have an impact on the
would not necessarily lead to a more representative
representativity of the provisional sample as a whole.
sample. Furthermore, the representativity of the sample
was established not only on the basis of the production
volume but also on the basis of the geographical spread
and a balanced representation of vertically integrated and
non-integrated producers. The relative representativeness
(vi) One party provided a list containing allegedly
of the production volume was calculated at the level of
around 150 additional Union producers of the like
each type of the like product. On this basis, it was
product, claiming that they should have been taken
considered that the methodology to select the provisional
into consideration for the purposes of selecting a
sample was reasonable and the sample is therefore
sample of Union producers.
considered representative for the Union industry of the
product under investigation as a whole. Therefore, this
claim was rejected. As far as the reliability of data is
concerned, the sample was selected on the basis of the
information available at the time of the selection of the
(16)
The arguments raised by the parties were addressed as
sample as provided for in Article 27 of the basic Regu
follows: The Union producers requested that their names
lation. Concerning the reliability of data used in the
be kept confidential due to the risk of retaliation. There
support of the initiation of the investigation, the investi
were indeed real threats against Union producers to harm
gation found no evidence that the data collected prior to
their business both in the Union and outside. The
the initiation was significantly deficient. Therefore, it can
Commission considered that these requests were suffi
be reasonably assumed that the basis on which the provi
ciently substantiated to be granted. The disclosure of the
sional sample was selected was sufficiently reliable. There
location or share in production and sales of individual
fore, this claim was rejected.

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5.12.2013
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Official Journal of the European Union
L 325/69
(20)
Concerning the list of around 150 additional Union
Union producers is not warranted. As already stated in
producers, it should be noted that this information was
recital (9) to the provisional Regulation, the Union
submitted far outside the deadline set for interested
producers requested that their names be kept confidential
parties to comment on the selection of the provisional
due to the risk of retaliation. The Commission considered
sample and for Union producers to come forward and to
that these requests were sufficiently substantiated to be
request to be selected in the sample. Moreover, about 30
granted. The information that has been provided to the
of the Union producers contained in this list were in fact
Commission in order to substantiate the risk of retalia
known to the Commission at the time of the selection of
tion cannot be disclosed to third parties, as such disclo
the sample. Furthermore, all Union producers that made
sure would defeat the purpose of the request for confi
themselves known after the publication of the Notice of
dentiality. Moreover, in a case, where, as reported by the
Initiation were considered when selecting the sample. On
GOC, a Union producer re-evaluated its position and
this basis, the representativity of the sample has not been
revealed its identity by filing an application for a Court
affected. Therefore, this claim was rejected.
case against the provisional regulation, there is no longer
ground to disclose information on the basis of which
anonymity was granted, as the identity has been revealed.
(21)
Following receipt of comments, the composition of the
sample was revised on the ground that there were indica
(24)
Following the final disclosure, the China Chamber of
tions that one of the selected companies would not have
Commerce for Import and Export of Machinery and Elec
been in the position to fully cooperate. In order to main
tronic Products (CCCME) reiterated the arguments about
tain the level of representativity of the sample an addi
the method used for the selection of the provisional
tional Union producer was selected. This revised sample
sample of the Union producers. It claims in particular
consisted thus of ten companies, selected on the basis of
that the Institutions have not taken into account 120
the largest representative volume for each level of
producers. The Commission already addressed this issue
production, taking into account sales volume on the
in recital (9) to the provisional Regulation. Moreover, the
Union market and geographical location that could
Institutions have verified the activities of the companies
reasonably be investigated within the time available.
provided on that list. It turned out that that list mostly
Further to the exclusion of wafers from the definition of
includes installers, distributors, related importers and
the product concerned, and thus from the scope of this
exporting producer in China, Taiwan, and India. It there
investigation (see recitals (42) — (46) — and (349)
fore was not apt to demonstrate that the Institutions had
below), the sample consisted of eight companies. As a
overlooked a significant number of Union producers.
result, the revised sample of Union producers accounted,
Moreover, the CCCME has not contested the total Union
expressed as a percentage of out of the total Union
production by providing alternative figures, nor has it put
production, between 18 % and 21 % for modules and
forward any evidence that the representativity of the
between 17 % and 24 % for cells and covered vertically
sample could have been affected, as none of the alleged
integrated and non-integrated producers. Given that a
additional Union producers would have been selected
precise percentage would allow calculating the produc
into the sample, had it been known to the Commission.
tion volume of the above mentioned additional Union
producer and thus its identity could be determined, no
such precise percentages could be disclosed.
(22)
The Union producers who supplied the Commission with
information required for the selection of a sample in the
(c) Sampling of unrelated importers
present anti-subsidy proceeding coincide with the Union
producers who supplied the relevant information in the
parallel on-going anti-dumping investigation. Further
more, all Union producers selected in the final sample in
the anti-dumping investigation have supplied the relevant
information in the present anti-subsidy investigation
(25)
Of the around 250 unrelated importers put forward by
which allowed the Commission to select a sample. There
the complainant, that the Commission contacted, twenty
fore, it was considered appropriate that the final samples
parties replied to the sampling form attached to the
of Union producers in both proceedings were identical.
Notice of Initiation, twelve for modules, one for cells. In
addition, seven other parties made themselves known but
reported no imports or resales of the product concerned.
The sample was selected in accordance with Article 27 of
the basic Regulation to cover the largest representative
volume of imports which could reasonably be investi
gated within the time available. On this basis a sample of
(23)
The GOC reiterated its claim that the use of confidenti
unrelated importers was selected consisting of two
ality of the names of the Complainants and sampled
importers for modules and one importer for cells,

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L 325/70
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Official Journal of the European Union
5.12.2013
representing around 2 % — 5 % of the total imports
PRC, five exporting producers which requested individual
from the country concerned. After the receipt of the
examination, from all the sampled Union producers, all
questionnaire reply, it became however apparent that the
the sampled unrelated Union importers and 21 upstream
core activity of one of the three importers was in fact
and downstream operators and three of their associa
solar installations and not trading of the product
tions.
concerned. As to the activity of a second importer, this
was that of an importer of modules and not of an
importer of cells. Nevertheless, the quality of the infor
(29)
The Commission sought and verified all information
mation provided in its reply to the questionnaire was not
deemed necessary for the determination of subsidisation,
sufficient to include it in the analysis of unrelated impor
resulting injury and Union interest. Verification visits
ters. In addition, the investigation revealed that a majority
were carried out at the premises of the following State
of imports of the product concerned entered the Union
authorities and financial institutions, the sampled compa
market through companies related to the exporting
nies, one unrelated importer, two upstream and four
producers in the PRC or through installers or project
downstream operators, associations and independent
developers.
consultant:
(a) Government of the People's Republic of China
(26)
Following the imposition of provisional anti-dumping
measures in the parallel anti-dumping investigation, the
— Chinese Ministry of Commerce, Beijing, China
Commission contacted additional importers that had
already cooperated in the investigation at the initiation
stage by providing basic information on their activities
— Huaxia Bank, Beijing, China
related to the product under investigation during the
investigation period, as specified in the Notice of Initia
— China Development Bank, Beijing, China
tion. The purpose was to determine whether the size of
the sample of unrelated importers could be increased. Six
— Export Import Bank of China, Beijing, China
companies qualified as unrelated importers trading the
product concerned (i.e. purchasing and reselling it) came
— China Export & Credit Insurance Corporation
forward and were willing to cooperate further in the
(SINOSURE), Beijing, China
investigation. Out of these six, five replied within the
deadline. Out of the five replies received, only three were
(b) Union producers
sufficiently complete and allowed for a meaningful assess
ment. On this basis, the sample of the unrelated impor
ters was enlarged and consisted of four importers for
— eight sampled Union producers
modules, representing around 2 % — 5 % of the total
imports from the country concerned. Given the structure
(c) Groups of Exporting producers (and related compa
of the unrelated importers, which were mostly small and
nies) in the PRC
medium-sized companies, it was not possible to have a
sample representing a larger share, given the limited
— Changzhou Trina Solar Energy Co. Ltd, China
resources at the disposal of the Institutions.
— Delsolar (Wujiang) Ltd. (Wujiang) Co. Ltd., China
— Jiangxi LDK Solar Hi-tech Co. Ltd., China
(d) Questionnaire replies and verifications
— JingAo Group, China
— Wuxi Suntech Power Co. Ltd, PRC Power Co. Ltd,
(27)
The Commission sent questionnaires to the representa
China
tives of the PRC (including specific questionnaires for the
China Development Bank, Export Import Bank of China,
— Yingli Green Energy Holding Company, China
Bank of China, Bank of Shanghai, Sinosure, other rele
vant financial institutions and state-owned producers of
— Zhejiang Yuhui Solar Energy Source Co. Ltd and
polysilicon, glass and aluminium which supplied these
Renesola Jiangsu Ltd, China
raw materials to the industry concerned during the inves
tigation period), the eight sampled exporting producers
— Jinko Solar Co Ltd, China
in the PRC, other exporting producers in the PRC that
requested so, as well as to the sampled Union producers,
the sampled unrelated importers and upstream and
(d) Unrelated importer in the Union
downstream operators and their associations that made
themselves known within the time limits set out in the
— IBC SOLAR AG, Bad Staffelstein, Germany
Notice of Initiation. The Commission also contacted a
representative consumer association.
(e) Upstream operators
— Roth & Rau AG, Hohenstein-Ernsthal, Germany
(28)
Replies were received from the GOC, all the sampled
exporting producers and their related companies in the
— WACKER Chemie AG, Burghausen, Germany

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5.12.2013
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Official Journal of the European Union
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(f) Downstream operators
also ascertained that the non-confidential versions of the
questionnaires did indeed not reveal the identity of the
— Juwi Solar GmbH, Worrstadt, Germany
Union producer concerned. In some cases, the non-confi
dential versions needed therefore to be corrected accord
ingly by the party submitting it before they could be
— ValSolar SL, Badajoz, Spain
made available for other interested parties.
— Jayme de la Costa, Pedroso, Portugal
(34)
In any event, it is considered that this did in no way
— Sunedison, Spain Construction, Madrid, Spain
affect the interested parties' rights of defence. The
Commission has given all the interested parties the
(g) Associations
opportunity to respond to the information included in
the file open for inspection in time so that their
comments could be taken into consideration, when
— European
Photovoltaic
Industry
Association
substantiated and warranted before any conclusions were
(‘EPIA’), Brussels, Belgium
made in the investigation. The interested party had every
opportunity to comment on the questionnaires from
(h) Independent consultant
sampled Union producers also following the provisional
and the final disclosure. Therefore, even if the disclosures
and the access to the file open for inspection by inter
— Europressedienst, Bonn, Germany
ested parties are based on different legal provisions, it
should be noted that there were ample opportunities for
(30)
The comments submitted by the interested parties were
the interested parties to comment on all information
considered and taken into account where appropriate.
made available by any party to the investigation. There
fore, this claim had to be rejected.
(31)
The Association for Affordable Solar Energy (‘AFASE’),
representing importers, downstream and upstream opera
tors questioned the legal basis for the visit carried out at
(35)
All interested parties were informed of the essential facts
the premises of Europressedienst, by claiming that an
and considerations on the basis of which it was intended
independent consultant is not an interested party under
to recommend the imposition of countervailing duties on
Article 26 of the basic Regulation. However, findings
imports of crystalline silicon photovoltaic modules and
should be based on reliable and verifiable data wherever
key components (i.e. cells) originating in or consigned
possible. Europressedienst has provided information on
from the People's Republic of China (‘the final disclo
macroeconomic indicators on the basis of a contract. The
sure’). All parties were granted a period within which
Commission carried out an on-the-spot verification at its
they could make comments on the final disclosure.
premises for the sake of the principle of good administra
tion to verify the reliability and correctness of data on
which the Commission has based its findings.
(36)
The comments submitted by the interested parties were
considered and taken into account where appropriate.
(32)
The GOC claimed that its rights of defence in relation to
access to the files open for inspection by interested
parties were violated because (i) information was missing
from the non-confidential files without ‘good cause’
being shown or providing sufficiently detailed summaries,
or exceptionally, the reasons for the failure to provide the
1.5. Acceptance of an undertaking in view of
non-confidential summary, (ii) the non-confidential
definitive duties
version of an entire questionnaire response of a Union
producer was missing and (iii) the delays to make non
confidential versions of the Union producers' question
naire responses available for interested parties were exces
(37)
Following final disclosure, the Commission received an
sive.
amended offer for an undertaking by exporting producers
together with the China Chamber of Commerce for
Import and Export of Machinery and Electronic Products,
(33)
(i) Regarding the claim that information was missing
which covers also the parallel anti-dumping investigation.
from the open file, the interested party did not specify to
By Commission Implementing Decision 2013/707/EU of
which information it was referring to. (ii) Its claim that
4 December 2013 confirming the acceptance of an
the non-confidential version of an entire questionnaire
undertaking offered in connection with the anti-dumping
response has not been made available was incorrect. (iii)
and anti-subsidy proceedings concerning imports of crys
As to the delays in making available the non-confidential
talline silicon photovoltaic modules and key components
replies of the questionnaires of the sampled Union
(i.e. cells) originating in or consigned from the People's
producers, it had been explained to the party concerned
Republic of China for the period of application of defini
that the questionnaires were only added to the non-confi
tive measures (1), the Commission has confirmed the
dential file after having been checked as to their comple
acceptance of that undertaking.
teness and reasonableness of the summaries. In order to
ensure the Union producers' right to anonymity, it was
(1) See page 214 of this Official Journal.

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L 325/72
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Official Journal of the European Union
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1.6. Investigation period and period considered
(43)
Firstly, interested parties claimed that wafers can be used
for other purposes than for the production of cells,
(38)
The investigation of subsidisation and injury covered the
notably the production of integrated circuits and other
period from 1 July 2011 to 30 June 2012 (the ‘investiga
micro devices. In this respect, it is noted that not all
tion period’ or ‘IP’). The examination of trends relevant
wafers are included in the product scope of this investiga
for the assessment of injury covered the period from 1
tion, which is limited to ‘wafers of the type used in crystalline
January 2009 to the end of the IP (‘the period consid
silicon PV modules or panels’, and that those wafers have ‘a
ered’).
thickness not exceeding 400 micrometres’. While wafers
certainly do exist in other applications, the investigation
never covered wafers which are used in the production of
other products such as integrated circuits. In addition, no
2. PRODUCT CONCERNED AND LIKE PRODUCT
producers, importers or users involved in the market for
these different types of wafers came forwards alleging
2.1. Product concerned
that their wafers would be subject to registration or
provisional anti-dumping duties. It is therefore concluded
that these other types of wafers are not subject to the
(39)
The product concerned was defined at initiation stage as
product scope of this investigation. At the same time,
crystalline silicon PV modules or panels and cells and
this shows that wafers do not necessarily have the same
wafers of the type used in crystalline silicon PV modules
end use as cells and modules.
or panels, originating in or consigned from the PRC. The
cells and wafers have a thickness not exceeding 400
micrometres. This product is currently falling within CN
codes ex 3818 00 10, ex 8501 31 00, ex 8501 32 00,
(44)
Secondly, it is claimed that an unprocessed wafer
ex 8501 33 00, ex 8501 34 00, ex 8501 61 20,
possesses none of the essential electric properties which
ex 8501 61 80, ex 8501 62 00, ex 8501 63 00,
distinguish solar cells and modules from other products.
ex 8501 64 00 and ex 8541 40 90.
In particular, wafers lack the ability to generate electricity
from sunlight, which is the key function of crystalline
photovoltaic cells and modules.
(40)
The following product types are excluded from the defini
tion of the product concerned:
(45)
Indeed, the investigation showed that only once the wafer
— solar chargers that consist of less than six cells, are
is transformed into a cell, the functionality to generate
portable and supply electricity to devices or charge
electricity from sunlight arises. The conversion is oper
batteries,
ated by cells which absorb light and convert it into elec
tricity through crystalline silicon. Cells have a positive
— thin film photovoltaic products,
negative junction to collect and forward the electricity
that is generated by the cell. To assemble the modules,
— crystalline silicon photovoltaic products that are
cells are soldered together with flat wires or metal
permanently integrated into electrical goods, where
ribbons to produce a string of cells. Those are laminated
the function of the electrical goods is other than
between sheets. Mostly glass is used on top and a poly
power generation, and where these electrical goods
meric backing sheet to the bottom. Frames are usually
consume the electricity generated by the integrated
created to allow the mounting in the field (e.g. on roof
crystalline silicon photovoltaic cell(s).
tops). The module may or may not have an inverter.
2.2. Like product
(46)
Due to the different basic physical and technical charac
teristics, defined during the investigation inter alia as the
(41)
The investigation has shown that the product concerned
functionality to generate electricity from sunlight, it was
as well as the product produced and sold in the Union
concluded on balance that wafers should be excluded
by the Union industry have the same basic physical,
from the definition of the product concerned, and thus
chemical and technical characteristics as well as the same
from the scope of this investigation.
basic end uses. They are therefore considered as alike
within the meaning of Article 2(c) of the basic Regu
lation.
2.3.2. Physical, chemical and technical characteristics and end
2.3. Claims regarding product scope
uses
2.3.1. Exclusion of wafers
(47)
Several interested parties claimed that the investigation
(42)
Interested parties claimed that wafers should be removed
cannot cover two products with different physical,
from the product scope since wafers do not share the
chemical and technical characteristics, and therefore
same basic physical, chemical and technical characteristics
modules and cells should be subject to two separate
as cells and modules. In addition to the arguments
investigations. Moreover, they claimed that it is unclear
brought forward before the publication of the Provisional
whether the investigation covers one single product or
anti-dumping Regulation, two additional arguments were
two separate products and therefore they have no full
brought forward in this respect thereafter.
opportunity to defend their interests.

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5.12.2013
EN
Official Journal of the European Union
L 325/73
(48)
The cell-module production is one single production
(54)
Modules and cells cannot be considered as separate
process with different production steps. Cells determine
products whose prices fluctuate only depending on
the characteristics of the finished product (i.e. modules).
market factors. As a matter of fact their prices are strictly
The investigation showed that the cells production is
interconnected and affected by the polysilicon price. Like
directly and exclusively dedicated to produce modules;
wise, as it has been explained above in recitals (49)
modules and cells share the same physical, chemical and
above, the product concerned is produced in one single
technical characteristics (determined by the raw material
production process with different steps. The fact that
used) and have the same basic end uses, i.e. are sold for
some producers are not vertically integrated is due only
integration into PV solar systems. The modules perfor
to business decision and economies of scale and does not
mance is directly linked to the performance of the cells.
reverse this conclusion. On these grounds, this argument
had to be rejected.
(49)
The Notice of Initiation clearly expressed that modules
and cells constitute the product under investigation.
Interested parties had therefore full opportunity to defend
their interests on the basis of the product concerned as
2.3.6. End use and interchangeability
defined. On these grounds, the arguments were rejected.
(55)
Several interested parties claimed that modules and cells
must be treated as different products given that they have
different end uses and they were not interchangeable.
2.3.3. Different nomenclature
(56)
As mentioned above the investigation showed that the
(50)
It was further claimed that modules and cells could not
cell-module production process is one single production
be considered as a single product as they have several
process and therefore the question of interchangeability
different eight-digit CN codes, six-digit subheading and
between different steps of a single production process is
four-digit HS heading. In this respect it is noted that both
not applicable. Moreover, modules and cells have the
cells and modules can be declared under customs
same end use, converting sunlight into electricity and
heading 8541 40 90, while the customs headings under
therefore cannot be used in other applications.
heading 8501 are for electric generators in general and
not in particular for solar products. On these grounds,
the argument was rejected.
2.3.7. Distribution channels
2.3.4. Value added of cells
(57)
One interested party claimed that modules and cells do
not share the same distribution channels and should
therefore not be considered as one single product. The
investigation showed that modules and cells can be
(51)
Several parties claimed that the value added in the cell
distributed within different or similar distribution chan
conversion process accounts for the largest part of the
nels. However, the main criteria to define a single
value of a module and therefore cells must be considered
product are the same physical, chemical and technical
as a separate product.
characteristics and end uses. Considering recitals (47) to
(49) above, it is concluded that therefore different distri
bution channels are not considered as a determining
(52)
The investigation revealed that the cells production is the
element. The argument should therefore be rejected.
most technologically sophisticated part in the production
process. However, it also showed that the two processing
steps are linked to each other and the value added is not
concentrated in a particular stage of the production
process but is spread over the whole production process.
2.3.8. Consumer perception
On these grounds, the claim was rejected.
(58)
It was claimed that modules and cells differ substantially
in terms of consumer perception and therefore they
should not be considered as one single product.
2.3.5. Separate merchant markets
(59)
Likewise as above the main criteria to define a single
(53)
Some interested parties claimed that modules and cells
product are the same physical, chemical and technical
have separate merchant markets and therefore they
characteristics and end uses. Considering recitals (47) to
should be treated as different products which would also
(49) above it is concluded that therefore different
be demonstrated by the fact that a large number of
consumer perception is not considered as a determining
producers are not vertically integrated.
element. The argument should therefore be rejected.

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L 325/74
EN
Official Journal of the European Union
5.12.2013
2.3.9. Separate investigations for cells and modules
modules and cells are distinct products requiring two
distinct investigations. The different minimum import
prices, however, are merely an indication that cells and
modules are different groups of product types which are
sold at different prices. Therefore, it is necessary to define
(60)
Interested parties reiterated that cells and modules are
different
prices
to
make
the
minimum
import
not a single product, and should therefore be assessed
prices meaningful.
separately. Unlike wafers, however, cells and modules do
share the same basic property, i.e. the ability to generate
electricity from sunlight. These arguments were therefore
rejected.
(65)
Also, the fact that cells and modules are distinct groups
of product types is not as such relevant for the definition
of the product concerned. For the definition of the
(61)
Following final disclosure, one exporter argued that cells
product concerned, it is sufficient that the products share
by themselves cannot produce electricity. Allegedly, they
the same basic characteristics and end uses, which is the
need to be integrated into modules to do so. However,
case for modules and cells as described in recitals (46)
each cell by itself has a capacity to generate electricity
and (71) respectively.
from sunlight of typically around 4W. While this power
may be insufficient for most applications which require
an assembly of multiple cells into modules, this does not
mean that a cell by itself does not already have the capa
city to generate electricity.
(66)
The GOC argued that the assessment whether cells and
modules are a single product concerned does not address
a number of criteria defined by the Appellate Body in EC
— Asbestos (1). These criteria are used for the definition
(62)
Following final disclosure, one exporter further argued
of the ‘like product’, not the product concerned. In other
that cells are not just another type of module, but an
words, these criteria have to be used to define the like
entirely different product. In effect, a cell is the key
product, for example the like product produced by Union
component of a module. As a key component, a cell is
Industry, which is then compared with the product
clearly not ‘an entirely different product’, as modules and
concerned exported by the Chinese exporting producers.
cells share the same basic characteristics of generating
These criteria are therefore not pertinent when defining
electricity from sunlight, as indicated in recital (60)
the product concerned. In any event, the Institutions
above.
observe that the application of the criteria used in EC —
Asbestos to the definition of the product concerned in the
present case would not lead to a different outcome. The
first and the second criteria (properties, nature and
quality respectively end-uses) are identical to the criteria
(63)
The same party argued in addition that when the samples
physical, chemical and technical properties and end-uses
for Union producers and Chinese exporters were selected,
used in the preceding recitals. The third criterion (consu
the difference between cells and modules was taken into
mers taste and habits) is not really useful for the present
account. Therefore, different duty rates for modules and
case, as cells are the key component of modules; as
cells should have been established. In this respect, it is
regards the fourth criterion, tariff classification, it is
confirmed that the difference between modules and cells
noted that both cells and modules can be declared under
was indeed taken into account when sampling Union
customs heading 8541 40 90, while the customs head
producers and Chinese exporters, as indicated in recitals
ings under heading 8501 are for electric generators in
(10) and (14) to the provisional anti-dumping Regulation.
general and not in particular for solar products.
This, however, was only done to ensure that the sample
is representative and does as such not mean that cells
and modules should not be considered a single product
concerned, or that separate duty rates should be estab
lished for cells and modules. Indeed, in order to ensure
(67)
Other interested parties argued that an objective applica
that the sample was representative for all product types,
tion of the criteria developed by the Court of Justice in
it was important to distinguish between cells and
previous cases (2) allegedly leads to the conclusion that
modules when selecting the sample. Furthermore, as
modules and cells are different products. In this respect,
there was a certain degree of uncertainty with regards to
it is noted that the court only indicated a number of
the question as to whether cells and modules were to be
criteria which may be taken into account — there is no
regarded as one product or as two separate products, it
obligation to use all criteria in all cases, since not all of
was necessary to ensure representativity for both possible
them may be relevant. These criteria were assessed in
outcomes.
recitals (27) to (39) to the provisional anti-dumping
Regulation, where it was found that a number of criteria
(1) Appelate Body Report, European Communities — Measures Affecting
Asbestos and Asbestos-Containing Products, WT/DS135/AB/R, adopted 5
(64)
Exporting producers claimed that the fact that the under
April 2001.
taking imposes different minimum import prices and
(2) Case T-401/06 Brosmann Footwear (HK) Ltd and others vs Council; Case T
volumes for cells and modules allegedly confirms that
314/06 Whirlpool Europe vs Council.

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5.12.2013
EN
Official Journal of the European Union
L 325/75
are not relevant in the present case. In the Brosmann case
concerned, arguing that they share the same basic
the assessment whether different types of shoes belong to
physical, chemical and technical characteristics and the
the ‘product concerned’ was also made on the basis of
same basic end uses.
only three criteria which were found to be relevant. As
the interested parties did not provide any reasoning why
an objective application of the criteria leads one to
conclude that modules and cells are distinct products, the
(73)
Thin film PV products are clearly excluded from the
argument cannot be accepted.
product definition (see recital (40) above). Indeed, thin
film PV products have different physical, chemical and
technical characteristics compared to the product
concerned. They are produced via a different production
(68)
In addition, it is recalled that cells and modules have the
process and not from crystalline silicon which is the
same basic end uses, i.e. they are sold for integration into
main raw material to produce modules and cells. They
PV solar systems. The modules performance is directly
have lower conversion efficiency and a lower wattage
linked to the performance of the cells, as indicated in
output and therefore they are not suitable for the same
recital (28) to the provisional anti-dumping Regulation.
types of applications than those of the product
concerned. On these grounds, the arguments had to be
rejected.
(69)
One interested party argued that with the exclusion of
wafers from the product scope, and due to the significant
processing involved to make modules from cells, the
argument that cells and modules have the same end uses
also stands refuted. It is also argued that the assessment
that modules and cells have the same end uses is based
2.3.11. Semi-finished products
on the assumption that wafers, modules and cells have
the same production process.
(74)
Furthermore it was claimed that cells should be consid
ered as semi-finished feeder products while modules are
end products, therefore they should not be considered as
(70)
Firstly, the conclusion that the assessment that modules
and cells have the same end uses is based on the produc
one single product.
tion process is wrong. While both statements are indeed
in the same recital (36) to the provisional anti-dumping
Regulation, this does not mean that one conclusion is
based on the other assumption. The word ‘moreover’
(75)
As mentioned above, the main criteria to define a single
separating the two statements makes it clear that the
product are the same physical, chemical and technical
second statement is not based on the first. In addition,
characteristics and end uses. Considering recitals (47) to
the two statements are made to address separate issues
(49) above it is concluded that therefore the difference
under the heading ‘End use and interchangeability’. The
between semi-finished or finished products is not consid
first statement concerning the production process
ered as a determining element. The argument should
addresses interchangeability, while the second statement
therefore be rejected.
addresses end use. The underlying assumption that the
assessment that modules and cells have the same end
uses is based on the assumption that wafers, modules
and cells have the same production process is there
fore incorrect.
2.3.12. Solar chargers
(71)
As to the actual end use of cells and modules, it is not
disputed by interested parties that modules and cells are
(76)
One interested party requested the exclusion of solar
sold for integration into PV solar systems. The conclusion
panels dedicated solely to 12V battery charging on the
that modules and cells have the same end use is therefore
basis that they have a different end use than the modules
confirmed.
for grid connection due to the fact that they generate
much lower voltage and therefore are not suitable for
grid connection.
(77)
According to the Notice of Initiation solar chargers that
2.3.10. Thin film products
consist of less than six cells, are portable and supply elec
tricity to devices or charge batteries are excluded from
the product under investigation. Modules of more than
six cells dedicated only to battery charging have the same
(72)
One interested party claimed that thin film PV products
basic characteristics and performance as the modules for
should be included in the definition of product
grid connection. They use an open voltage circuit which

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L 325/76
EN
Official Journal of the European Union
5.12.2013
has a lower voltage than the circuit used in modules for
tionality of a solar module with that of a roof tile or
grid connection. Despite this difference the investigation
slate. As such, they are not directly interchangeable with
has revealed that this type of modules can be connected
a standard solar module.
to the grid. The lower voltage can be easily compensated
by an increase in dimension and/or number of cells.
Therefore modules dedicated to battery charging, and
consisting of more than six cells, fall within the definition
of the product concerned.
(83)
The investigation has, however, shown that both standard
modules and the roof-integrated solar module have to
comply with the same electrical standards. And while the
roof-integrated solar module cannot be simply replaced
with a standard module, it can be replaced by a standard
(78)
Interested parties also claimed that the definition of ‘solar
module plus roof tiles or slate. These products therefore
chargers that consist of less than six cells’ is too narrow,
have the same basic technical property of generating elec
and should be extended to products with a similar func
tricity from sunlight. The added functionality (which is
tion which are not covered by this definition such as
otherwise provided by roofing material) is not considered
products with a similar size using a larger number of
substantial and does not warrant an exclusion of roof
smaller cells.
integrated solar modules from the product scope.
(79)
In addition, interested parties claimed that the definition
of ‘silicon PV products that are permanently integrated
(84)
Following definitive disclosure, the same interested party
into electrical goods’ is too narrow, as only the complete
argued that the absence of dual-interchangeability
electrical good is excluded, while solar components for
between roof-integrated solar modules and standard solar
integration into the electrical goods are not necessarily
modules is an indication that roof-integrated solar
excluded.
modules should be excluded from the scope of the
measures, referring to the footware (1) case in general and
special technology athletics footwear ‘STAF’ in particular.
However, the reasons for the exclusion of STAF were
numerous, and the absence of dual interchangeability by
(80)
Indeed, an analysis of the arguments brought forward by
itself was not considered a sufficient ground by the
the various interested parties showed that it is more
General Court in the Brosmann (2) case, which confirmed
appropriate to define the exclusion of such products on
that very different product such as city trotters and
the basis of technical standards rather than the number
hiking
boots
can
indeed
be
considered
product
of cells. In particular, it was established that the defini
concerned in a single anti-dumping investigation despite
tions of standard ‘IEC 61730-1 Application Class C’
their differences.
more appropriately define the products which should be
excluded from the scope of the measures.
(85)
In addition, the interested party argued that the absence
(81)
Following definitive disclosure, comments were received
of production in the EU and the fact that the interested
concerning the exclusion based on the international
party holds intellectual property rights is allegedly a
standard mentioned above. It was argued that rather than
confirmation that roof-integrated solar modules are inno
referring to the standard, it would be more appropriate
vative and different from any other product. However,
to define the exclusion on the basis of the output voltage
referring again to the footwear case mentioned by the
and the power output as ‘modules or panels with a
interested party, the General Court held in Brosmann that
output voltage not exceeding 50 V DC and a power
‘the absence of Community production of that type of footwear
output not exceeding 50 W solely for direct use as
and the existence of a patent are not conclusive.’ (3). As a
battery chargers in systems with the same voltage and
result, patented technology footwear was considered
power characteristics’. This claim could be accepted, and
product concerned in that case.
the exclusion is finally determined according to this defi
nition.
(86)
The interested party also argued that roof-integrated solar
modules should be excluded from the definition of the
product concerned, since they are sold at substantially
higher prices than standard modules. Also, in the footwear
case STAF above a certain price were excluded from the
2.3.13. Roof-integrated solar modules
(1) 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.).
(2) Case T-401/06, Brosmann Footwear (HK) Ltd. vs Council of the European
(82)
Another interested party claimed that roof-integrated
Union, para 133.
solar modules should be excluded from the product
(3) Case T-401/06, Brosmann Footwear (HK) Ltd. vs Council of the European
scope of the investigation, since they combine the func
Union, para 135.

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5.12.2013
EN
Official Journal of the European Union
L 325/77
definition of the product concerned. In this respect, it is
Initiation it is stated that ‘companies which ship the
noted that a roof-integrated solar module does combine
product concerned from the People's Republic of China
the functionality of a solar module and roof tile or slate,
but consider that part or even all of those exports do not
as indicated in recital (83). A direct comparison of prices
have their customs origin in the People's Republic of
is therefore not meaningful, as the added functionality
China are invited to come forward in the investigation
naturally leads to higher prices.
and to furnish all relevant information’. It is therefore
clear that all companies consigning goods from the PRC
had the opportunity to co-operate in this investigation.
Furthermore, since the product under investigation
(87)
In response to this argument, the interested party argued
frequently incorporates components and parts from
that on the basis of this argumentation, it would be
different countries, it was also announced in point 5 of
impossible to ever invoke price differences as an addi
the Notice of Initiation that ‘special provisions may be
tional indicator warranting the exclusion from the
adopted’ to address this issue.
product scope. However, this interpretation is too far
reaching. What is said in the previous recital is merely
that in this particular case where the roof-integrated
modules combine the functionality of the product
concerned plus another product (in this case roof tile or
(92)
It is therefore considered that all affected economic
slate), the price is naturally not meaningful. This in no
operators were duly informed of the possibility that
way means that in other cases the price difference cannot
special provisions in respect of goods consigned from the
be a useful indicator to establish whether a product
PRC may be adopted, if appropriate, and were invited to
should be excluded from the definition of the
co-operate in the investigation. Thus the scope of the
product concerned.
investigation was not extended to products ‘consigned
from the PRC’, since these were covered from the outset.
(88)
Lastly, the interested party argued that its supplier of
roof-integrated solar modules should be granted access to
the minimum price undertaking. However, it appears that
(93)
Following disclosure, interested parties argued that irre
the Chinese exporter did not co-operate in the investiga
spective of the provisions in the Notice of Initiation
tion, and as a non-cooperating party is not eligible to
referred to in recital (91), the investigation was limited to
participate in the undertaking. These requests can there
goods originating in the PRC and did not assess the
fore not be accepted.
impact of goods consigned from the PRC.
(94)
In this respect, it is noted that the following steps were
2.3.14. Mono and multi-crystalline cells
taken to ensure that all goods consigned from the PRC
were assessed during the investigation, and not only
goods originating in the PRC:
(89)
One interested party claimed that there was no produc
tion of mono crystalline cells in the Union, and that its
exports of mono crystalline cells were not competing
with the EU industry. Investigation showed however that
— All companies which ship the product concerned
there was indeed production of mono crystalline cells in
from the PRC were invited to come forward in the
the Union. This argument is therefore rejected. In any
investigation irrespective of the origin of the goods.
event, the General Court held in Brosmann that the
absence of Community production of a particular
product type is not decisive.
— In Annex A of the Notice of initiation, exporters
were asked to report information for all products
manufactured by the company. This information was
not limited to goods originating in the PRC.
2.3.15. ‘Consigned from’ clause
— On the basis of this information, which contained all
exports to the EU irrespective of the origin of the
goods, a representative sample was selected.
(90)
Some interested parties argued that the extension of the
scope of the investigation to products ‘consigned from’
the PRC was unjustified, while the case was initiated only
against products originating in the PRC.
— The sampled producers received a questionnaire for
‘producers exporting to the European Union’, and the
PRC was referred to as ‘country concerned’, not
country of origin. It was therefore clear that all goods
(91)
However, goods consigned from the PRC were already
irrespective of the origin of the goods were investi
covered at the initiation stage. In point 5 of the Notice of
gated.

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L 325/78
EN
Official Journal of the European Union
5.12.2013
(95)
On this basis, it is concluded that the investigation
Republic of China, unless they are in transit in the sense
covered all goods originating in or consigned from the
of Article V GATT. The cells have a thickness not
PRC, and that the findings of the investigation, including
exceeding 400 micrometers. This product is currently
subsidization and injury, cover all goods originating in or
falling within CN codes ex 8501 31 00, ex 8501 32 00,
consigned from the PRC.
ex 8501 33 00, ex 8501 34 00, ex 8501 61 20,
ex 8501 61 80, ex 8501 62 00, ex 8501 63 00,
ex 8501 64 00 and ex 8541 40 90.
(96)
Following final disclosure, interested parties argued that
the complaint contained only prima facie evidence
concerning imports of solar panels originating in the
(100) The following product types are excluded from the defini
PRC, not goods consigned from the PRC. In this respect,
tion of the product concerned:
it needs to be clarified that the complaint indeed covered
goods ‘from the PRC’, which can be seen from the cover
page submitted by the applicant bearing the stamp.
Before this page, there is another page on the file which
— solar chargers that consist of less than six cells, are
indeed uses the wording ‘originating in the People's
portable and supply electricity to devices or charge
Republic of China’. But this case was not part of the
batteries,
document submitted by the complainant, but added as a
cover page by the Commission Services, using the name
of the investigation rather than repeating the title of the
complaint. It is therefore considered that the complaint
— thin film photovoltaic products,
covered all goods from the PRC, whether originating in
the PRC or not.
— 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
(97)
Chinese
exporting
producers
further
argued
that
consume the electricity generated by the integrated
exporting producers in third countries cannot reasonably
crystalline silicon photovoltaic cell(s).
be expected to have known that their products could also
be targeted by the investigation. In this respect it is noted
that the measures do not apply to goods which are in
transit in the sense of Article V GATT. Therefore,
— modules or panels with a output voltage not
exporting producers which have no operations in the
exceeding 50 V DC and a power output not
PRC are not affected by the measures. Furthermore, no
exceeding 50 W solely for direct use as battery char
exporting producers in third countries came forward
gers in systems with the same voltage and power
raising the issue that the products they export are subject
characteristics.
to the measures.
(98)
The same exporting producers argued that exporting
producers in third countries were not asked to come
3. SUBSIDISATION
forward, and not given the opportunity to show that
their products are not subsidised. The Institutions
consider that those exporting producers without any
operations in the PRC are not affected by the measures,
(101) The complainant alleged that the PRC is heavily subsi
as their goods, if consigned from the PRC, will have been
dising its photovoltaic industry (‘PV industry’) and
in transit. All other exporting producers were informed
referred to a number of policy and planning documents
by the Notice of Initiation that their operations are part
as well as legislation which are the basis for the state
of the investigation.
support in the sector. The Commission reviewed and
analysed the documents mentioned in the complaint as
well as additional documents submitted by the GOC and
sampled exporting producers in the course of the investi
gation and found that many of them indeed show that
the PV industry in the PRC receives preferential treatment
in many areas.
2.3.16. Conclusion
(102) The GOC included the PV industry amongst ‘strategic’
industries in the 12th Five-year Plan (1). The GOC has also
(99)
In view of the above, the product scope is definitively
defined as crystalline silicon PV modules or panels and
(1) Chapter 10, Section 1, of the 12th 5-Year Plan: ‘In the new energy industry,
cells of the type used in crystalline silicon PV modules or
focus on the development of… … solar energy utilisation, photovoltaic and
panels, originating in or consigned from the People's
photo-thermal power generation’.

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5.12.2013
EN
Official Journal of the European Union
L 325/79
issued a specific plan for the solar photovoltaic industry
strategic industries including the solar PV industry.
(subordinate to the main 12th Five-year Plan), i.e. The 12th
Inter alia, it shows that the state shall encourage and give
Five-year Plan for the Solar Photovoltaic Industry. In this
guidance to financial institutions in supporting the devel
plan the GOC expressed its support for ‘superior enter
opment of high and new technology industries by
prises’ (1) and ‘key enterprises’ (2), committed itself to
granting loans (9), instructs the policy oriented financial
‘promote the implementation of various photovoltaic support
institutions to give priority to the development of high
policies’ (3), and ‘formulate overall preparation of supporting
and new technology industries in offering financial
policies on industry, finance, taxation …’ (4).
services (10), provides for ‘discount interest and guaranty to
the loans’ received by certain enterprises and ‘special aid’
by the policy oriented financial institutions to projects
encouraged by state (11). The practical applications of
these measures are detailed below.
The Decision No 40 of the State Council suggests that
the GOC will actively support the development of new
energy industry and expedite the development of solar
energy (5), instructs all financial institutions to provide
credit support only to encouraged projects (the category
in which the PV projects belong) and promises the imple
mentation of ‘other preferential policies on the encouraged
projects’ (6). Another State Council Decision of 10 October
2010 talks about expansion of the ‘intensity of fiscal and
financial policy support’, encourages the financial institu
tions to ‘expand the credit support’ and promises to ‘make
use of the fiscal preferential policies such as risk compensa
3.1. Preliminary remarks
tion’ (7) for new strategic industries, a category where the
solar PV industry belongs. The National Outline for the
Medium and Long-term Science and Technology Devel
opment (2006-2020) promises to ‘give the first place to
policy finance’, ‘encourage financial institutions to grant prefer
ential credit support to major national scientific and technolo
gical industrialisation projects’, to ‘Encourage financial institu
tions to improve and strengthen financial services to high-tech
enterprises’ and to ‘implement the preferential tax policies to
(103) Both the GOC and the sampled Chinese exporting produ
promote the development of high-tech enterprises’ (8).
cers submitted questionnaire replies and accepted on-spot
visits (12) in order to verify the replies.
Also the Law of the PRC on Scientific and Technological
(104) With respect to the GOC, following the analysis of the
Progress lists a number of measures for the support of
questionnaire reply, the Commission sent a deficiency
letter and a pre-verification letter, followed up with subse
quent correspondence concerning the agenda of the veri
(1) Section III.ii.1 of the 12th Five-year Plan for the Solar Photovoltaic
Industry.
fication visit. The Commission provided to the GOC
(2) Section III.iii.1 of the 12th Five-year Plan for the Solar Photovoltaic
ample time for the preparation and submission of its
Industry.
representations whenever this was requested and justified.
(3) Section III.ii.3 of the 12th Five-year Plan for the Solar Photovoltaic
Indeed, a substantial deadline extension was granted to
Industry.
the GOC, i.e. 30 days extension for the reply to the ques
(4) Section VI.i of the 12th Five-year Plan for the Solar Photovoltaic
Industry.
tionnaire which resulted in an eventual deadline of 69
(5) Chapter Orientation and Priorities of Industrial Restructuring, Article 5
days for the submission of the questionnaire reply and
of the Decision No 40 of the State Council on Promulgating and Imple
the Commission gave the GOC 25 days for the reply to
menting the Temporary Provisions on Promoting the Industrial Struc
the deficiency letter. Therefore, overall, the GOC has had
ture Adjustment.
(6) Chapter III, Article 17 of the Decision No 40 of the State Council on
Promulgating and Implementing the Temporary Provisions on
(9) Article 18 of the Law of the PRC on Scientific and Technological
Promoting the Industrial Structure Adjustment.
Progress.
(7) Articles 7.1 and 7.3 of the State Council Decision of 10 October 2010
(10) Ibid.
to encourage development of 7 new strategic industries.
(11) Article 34 of the Law of the PRC on Scientific and Technological
(8) Section VII, Chapters 1 and 5 of the National Outline for the Medium
Progress.
and Long-term Science and Technology Development (2006-2020).
(12) With the exception of certain state-owned financial institutions.

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L 325/80
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more than three months to provide the requested infor
application of facts available in accordance with Article
mation requested by the Commission.
28 of the basic Regulation. The Commission sent this
letter, since it had come to the preliminary conclusion
that the lack of information and supporting evidence
available from the GOC did not allow for a proper verifi
cation of the reply to the anti-subsidy questionnaire, defi
ciency letter and other submissions made by the GOC in
(105) During the on-spot verification visit to the Chinese
the course of the proceeding at hand. Moreover, it was
Ministry of Commerce in Beijing and four financial insti
found on spot that certain information was also withheld
tutions (China Development Bank, Export Import Bank
in the questionnaire reply and subsequent submissions by
of China, Huaxia Bank and SINOSURE) the Commission
the GOC, although it had been specifically requested by
endeavoured to verify information provided on the basis
the Commission. In addition certain questions were
of the supporting documents that were used to prepare
simply not replied to. The potential application of facts
the GOC's response, in line with the provisions of Arti
available concerned the government plans, projects,
cles 11 and 26 of the basic Regulation. In doing so, the
various legislation and other documents; Preferential
Commission came preliminarily to the conclusion that
policy loans, other financing, guarantees and insurance;
the lack of information and supporting documents avail
PBOC circulars; verifications at banks; Export credit
able from the GOC did not allow a proper verification of
insurance and Sinosure verification; the Golden Sun
the reply to the questionnaire. Moreover, certain informa
Demonstration programme; direct tax exemption and
tion was not submitted at all although it was specifically
reduction programmes; indirect tax and import tariff
requested and certain questions were simply not replied
programmes; provision of inputs at less than adequate
to. Consequently, the GOC was made aware of the conse
remuneration: polysilicon, aluminium extrusions and
quences of non-cooperation in accordance with Article
glass; and the provision of Land Use Rights.
28(1) and (6) of the basic Regulation.
(106) The GOC also submitted that the Commission was
imposing an unreasonable burden on the GOC and that
it had requested irrelevant and unnecessary information
in the questionnaire and subsequent deficiency letter.
(109) In its letter of 3 June 2013 the GOC objected the
Commission's preliminary intention to apply the provi
sions of Article 28 of the basic Regulation, reasoning
that the conditions required to disregard the information
submitted or even to ‘fill in information gaps’ had not
(107) With respect to the requested information it is noted that
been met in this case.
the Commission requested only information concerning
allegations in the complaint that is deemed necessary for
the purposes of arriving at a representative finding and
remained consistent in its requests by asking for the
same data and information during the investigating
process and requesting the GOC to explain the submitted
information and its implication for the investigated
schemes. In other words, the Commission only requested
information that was necessary to assess the existence
and level of subsidisation available to the product
(110) The GOC claimed that ‘doubts’ as to the accuracy of
concerned pursuant to the subsidy schemes alleged in
information, which arise solely from the fact that infor
the complaint.
mation submitted could not be verified to the Commis
sion's ‘utmost’ satisfaction, should not lead to that infor
mation being disregarded. The Commission disagrees
with this claim as it does not represent the reality.
Indeed, the Commission did not ‘disregard’ any of the
information solely on the basis that it could not verify it
during the on-the-spot verification visit. However, if the
information and explanation provided by the GOC was
found to be either contradictory and/or incomplete when
compared to the other information available to the
3.2. Non-cooperation
Commission and, at the same time it was not possible to
verify it during the on spot verification visit, the
Commission could not take such information at its face
value. Due weight is attached to each piece of informa
tion depending on the degree of non-cooperation from
the GOC. It is also noted that the Commission did not
(108) As already referred to in recital (105) above, following
take an issue with the format in which the information
the on spot verification visits, on 23 May 2013, the
was provided, as the GOC alleged, but rather with its
Commission notified the GOC that it was considering the
inaccuracy and/or incompleteness.

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5.12.2013
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(111) The GOC also claimed that some of the information
necessary to verify and assess the allegations in the
requested by the Commission involved such a burden
complaint supported by sufficient evidence. The Commis
that the GOC did not have the practical ability to provide
sion offered assistance to the GOC in the cover letter to
it. In this respect it is noted that the Commission
the questionnaire as well as in the questionnaire itself.
requested only information which was necessary to verify
Also in the deficiency letter, the GOC was invited to
the allegations made by the complainant (and supported
contact the Commission should it have any questions
by prima facie evidence) and gave the GOC ample time
concerning the requested information. The Commission
and opportunity to submit such information. In addition,
also granted exceptionally long deadline extensions for
the Commission is fully aware that the significant
the information to be submitted (see recital (104) above).
number of detailed allegations of the complainant in this
Furthermore, in this investigation, the Commission
case obliged it to request a substantial amount of infor
requested transaction-specific information from GOC
mation from the GOC. However, as explained above (reci
only with regard to the sampled exporters, not to all
tals (104) to (107)), the information sought was not
solar panel producers in China, thus narrowing down the
excessive and due time was allowed for it to be provided.
potential volume of required information to a major
extent. The Commission notes that the GOC appears to
conflate arguments concerning its practical ability to
provide data with other issues.
(112) Further the GOC pointed to the distinction between
disregarding the submitted information and supple
menting the information received with facts actually on
records. While the Commission is fully aware of this
For example, when discussing the Commission's allegedly
distinction and acts in line with the relevant provisions of
excessive request for information on banks and financial
Article 28 of the basic Regulation it must point out that
institutions, it bases it argument mainly on the alleged
when the submitted information is in contradiction with
insufficiency of the complaint, claiming that it is based
other information available on the same matter to the
on ‘illegal determinations’ in the Coated Fine Paper case.
Commission it is not possible to supplement this infor
Therefore, the GOC's complaint seems to relate to the
mation. On such occasions (e.g. submitted information
quality of evidence for initiation, not its practical ability
on the ownership of banks) the Commission had to
to provide information. Indeed, in its letter of 3 June 2013
decide which information is more reliable. In doing so
the GOC repeated its claim from the previous submis
the Commission ensured that the use of facts available is
sions that initiation of many of the programmes did not
not punitive and is based on facts actually available.
meet the evidentiary threshold of the Article 11.2 of the
WTO SCM Agreement and that by initiating on these
programme the Commission violated Article 11.3 of the
WTO SCM Agreement. The Commission already replied
to these claims in a letter and Memorandum to the GOC
and since no new claims were raised in the letter of 3
June 2013 there is no need to re-address the same claims
for second time in this regulation.
(113) The GOC claimed that the Commission had no grounds
on which to consider the GOC as being non-cooperative
in this case as it either ignored or misunderstood its obli
gation to consider the ‘practical ability’ of the GOC to
respond to its demand. According to the GOC, the inves
tigation as a whole has been unduly burdensome such
that cooperation in general has been rendered impossible,
and the Commission as an investigating authority has
(114) The GOC also claimed that the Commission did not
continually refused to work with the GOC so as to miti
provide the GOC enough time to complete the question
gate such burdens. This claim is a clear misinterpretation
naire. This is simply incorrect. As explained in recital
of facts. The Commission, to meet its legal obligations
(104) above the Commission granted to the GOC
following the receipt of properly documented complaint
substantial extensions of deadlines, providing the GOC
and at the same time to respect relevant WTO jurispru
maximum possible time without this having a substantial
dence, requested from the GOC only the information
negative impact on the timely completion of the case.

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L 325/82
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The time allowed for the completion of the questionnaire
dential treatment in the normal course of an investiga
and reply to the deficiency letter was substantially more
tion.
than the time required by Article 11(2) of the basic Regu
lation.
(117) The Commission did not disregard any information
which the GOC did not produce, whatever the reason,
because it is simply not possible to disregard something
(115) The GOC claimed that the Commission ignored its
that was not provided. On the other hand in a situation
request for aid in determining the relative necessity of the
where the GOC did not provide, or make available for
questionnaire responses for the purposes of avoiding
inspection, certain information, and information of a
facts available determinations. In its submission it
similar nature was available to the Commission from
referred to its request to the Commission to explain the
other sources (mostly publicly available, but also from
purpose of particular requested information and to which
cooperating exporting producers or submitted by certain
factual determinations it would lead, in order to ‘ensure
banks during on-spot investigations); the Commission
that it could cooperate to the best of its practical ability
included this information in the case file and used it in
while at the same time providing the most essential infor
its determination. The Commission does not agree with
mation’. Naturally, the Commission could not know
the claim that the WTO ADA and ASCM provisions
before the actual information is provided to what conclu
which envisage ways in which confidential information
sions it will lead. The GOC also claims that the Commis
can be provided to investigating authorities and granted
sion structured the questionnaire so as to make it ‘func
‘confidential treatment’ do not apply to the GOC. In this
tionally impossible’ to complete and the Commission
regard, the GOC is claiming that governments should be
engaged in ‘fishing expeditions.’ The Commission cate
held to a different standard of cooperation than that of
gorically rejects these allegations. As explained above, the
exporters and that situation of governments warrants a
questionnaire only requested the information which was
‘modicum of comity’ to which exporters are not entitled.
necessary to make its determination.
With regard to the conduct of countervailing duty inves
tigations, the Commission does not agree. GOC is one of
the interested parties in the proceeding for the purpose
of the basic Regulation and at the same time, as an ‘inter
ested Member’, the PRC is bound by the WTO provisions
and jurisprudence.
(116) It was also claimed by the GOC that the Commission
insisted on the provision of documents which the GOC
could not by law produce or compel to be produced and
in this context referred to relevant EU and WTO law
which make it clear that only false or misleading informa
tion should be disregarded and that it had no ‘practical
Article 28(1) of the basic Regulation states: ‘In cases in
ability’ to provide certain information of which, as state
which any interested party refuses access to, or otherwise
secret or otherwise, its internal laws strictly prohibit
does not provide necessary information within the time
dissemination. It further claimed that the relevant provi
limits provided in this Regulation, or significantly
sions of WTO ADA and ASCM which envisage ways in
impedes the investigation, provisional or final findings,
which confidential information can be provided to inves
affirmative or negative, may be made on the basis of the
tigating authorities and granted ‘confidential treatment’
facts available.’ Article 12.7 of the WTO SCM Agreement,
do not always apply in the case where the information is
explicitly refers to the consequences of non-cooperation
to be provided by the authority of third country, in this
by governments (‘Interested Member’): ‘In cases in which
case the GOC. The GOC also claimed that the Commis
any interested Member or interested party refuses access
sion will fall foul of the ASCM if it refuses to recognise
to, or otherwise does not provide, necessary information
the legal distinction between a government's practical
within a reasonable period or significantly impedes the
ability to provide information which it is legally prohib
investigation, preliminary and final determinations, affir
ited from releasing, on one hand, and other sorts of
mative or negative, may be made on the basis of the facts
confidential information for which it may request confi
available.’ Therefore when the investigating country, in

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5.12.2013
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Official Journal of the European Union
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this case, the EU, exercises its WTO rights in a counter
Foreign Reserves, claiming not to be ready to reply to
vailing duty investigation and requests information
questions on these issues.
deemed necessary for the purpose of the investigation,
governments and exporters are under the same obligation
to cooperate. In the course of the investigation the GOC
often referred to rules on confidentiality as a reason for
not providing requested information, for example, the
PBOC circulars, for verification purposes It is noted that
even if the GOC was, as it claims, ‘legally prohibited from
releasing such information’ it is still bound by its WTO
obligations to provide information deemed necessary for
the investigation. In this regard, provisions of the muni
cipal law or internal rules of a WTO Member cannot
absolve it from its WTO obligations to cooperate with
investigations; in such cases of conflict, it is incumbent
upon the GOC to suggest ways in which access can be
(119) The GOC also argued that the Commission was not flex
afforded to information so that it can be adequately veri
ible during the on-spot verification visit and in fact ‘fixed
fied. Notwithstanding the above, the GOC never actually
a peremptory time-limit in regard to any requests for changes
explained this claim and never provided any evidence (e.
by the GOC’. In the same vein it claimed that the
g. the legal provision by which it is ‘legally prohibited’
Commission did not accept any of the ‘workable’ solu
from releasing such information) in this regard.
tions proposed by the GOC concerning the verification
at National Bureau of Statistics (NBS) and refused to
extend the verification until Monday 22 April 2013 to
verify NBS. Furthermore, the Commission officials started
the verifications with a delay virtually each working day
because, according to the GOC, of their late arrival.
(120) In respect of the above claims, the Commission under
lines that the degree of flexibility shown by its officials
on the spot has been full and unconditional. The
Commission officials have exceptionally offered to verify
documents and evidence the GOC sought to introduce
well after the close of a certain subject, well beyond the
regular working hours on a number of occasions. This
(118) Furthermore the GOC claimed that the pre-verification
was done several times, even if it meant having to move
letter of 25 March 2013 was not sufficiently detailed and
at a very late hour to other verifications sites and/or
it did not contain specific questions which will be
return to sites where the Commission officials had
addressed during the on-the-spot verification visit. In this
already been and had already provided an opportunity to
respect it must be noted that while there is no require
verify documents. Unfortunately, however, the GOC did
ment for the Commission to send a list of all questions
not take up these offers in the cases in question, which
which will be asked during the on spot verification (and
strongly suggest that the failure to submit the documents
the Commission does not consider this appropriate), the
requested by the Commission during the regular hours
pre-verification letter of 25 March 2013 contained a very
had not been due to their time constraints or to the
specific and detailed list of issues and documents which
unwillingness of the Commission to verify them. As
would be addressed in line with Article 26(3) of the basic
regards the delay on the start of the verification visit, the
Regulation and WTO requirements. However, the letter
Commission notes that the officials were present on time
made it clear that the list was non-exhaustive and that
every day but that, unfortunately, some delays were
other issues and evidence may be addressed if appro
caused by the daily registration procedures to access the
priate. In this respect it should also be noted that the
different verification sites required by the GOC or simply
GOC did not object the contents of this letter prior to
by the lack of GOC representatives to accompany the
the verification, although on the other hand it refused to
officials when they arrived at verification sites which
discuss some points not explicitly raised in the letter,
forced them to wait long time before the start. The
such as information on biggest banks in the PRC, invol
Commission also notes that the verification visits lasted
vement of China Communist Party (‘CCP’) in the manage
every day well beyond the normal working hours, and
ment of certain banks or access of some banks to the
that it was the GOC that cancelled the afternoon session
foreign currency reserves of State Administration of
of the verification visit the first day as the representatives

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L 325/84
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5.12.2013
of the Ministry of Technology decided not to participate
that all the documents directly pertain the industry
in the visit (see recital (122)). In fact, if the GOC had
concerned (2) and therefore their inclusion within the
accepted all the repeated offers by the Commission offi
scope of verification was highly relevant.
cials to verify documents beyond the working hours, the
visits would have lasted longer and it was because of the
GOC failure to fully cooperate that this was not the case.
Secondly, the wording the GOC used in its letter to the
Commission of 11 April 2013 was different than the one
referred to in its letter of 3 June 2013. In fact the GOC
stated, in its letter of 11 April 2013, that the verification
of said documents ‘is suspended unless the Commission can
(121) The GOC further contested the Commission's practice
convincingly demonstrate to what extent these documents are
not to accept new documents and evidence which require
considered relevant to the current investigation, in particular the
verification after the end of the verification session to
alleged subsidies’. Since all these documents directly
which they belong. In this respect it must be clarified
concern the industry concerned and even particular
that it is not and never was the intention of the Commis
subsidy schemes such as preferential lending or preferen
sion to disregard information provided in this way
tial tax schemes, as is obvious from their wording the
outright. The Commission took account of all the infor
Commission did not understand what could be added to
mation submitted, analysed its quality (e.g. the extract of
demonstrate their relevance even more. It was surprising
audited financial statements is treated in different way
for the Commission that the GOC did not appear to have
from a simple excel table or word document with figures
a problem with the relevance of these documents when
not supported by any official source) and attributed it the
they were submitted, but only when the Commission
appropriate weight given the fact that it was unable to
requested explanations.
verify this information during the on-the-spot verification
visit.
(123) In its letter of 23 May 2013 the Commission stated that
it was prevented from verifying most of the submitted
information to original documentation and cross
(122) Concerning the six documents (1) submitted by the GOC
checking it with the source data which were used to
in the course of the investigation and the content of
prepare the replies of the GOC in respect to the informa
which the GOC refused to discuss during the on-the-spot
tion on the financial market and financial institutions in
verification visit, the GOC claimed that the Commission
the PRC. The GOC objected that given the ‘very general
has no basis to apply facts available in line with Article
and unspecific quote’ the Commission has not provided
28 of the basic Regulation. It also claimed that the
the GOC an opportunity to meaningfully comment and
Commission failed to assist the GOC in understanding
the requirement to provide these documents and to
(2) E.g. National Outline for Medium and Long –term Science and Tech
demonstrate that all the documents concerned were rele
nology Development (2006-2020) identifies the Solar industry as key
vant despite that the GOC ‘had specifically invited the
field and foresees to ‘give the first place to policy finance’ or ‘encourage finan
cial institutions to grant preferential credit support to major national scientific
Commission before the start of the verification to assist the
and technological industrialisation projects’ or suggests some preferential
GOC in understanding the requirement to provide these docu
tax policies which were indeed used by the sample exporting producers.
ments and to demonstrate that that all the documents
Catalogue of Chinese High-Tech Products for Exports and Export list of
concerned were relevant’. In this respect, firstly, it is noted
High and NewTech Products are also highly relevant for the PV
industry since most of the sampled exporting producers are holders of
the certificate of High and New Technology Enterprise. As for the Law
(1) National Outline for Medium and Long-term Science and Technology
of the PRC on Scientific and Technological Progress it, inter alia,
Development (20062020); Catalogue of Chinese High-Tech Products
instructs the Policy-oriented financial institutions to give priority to the
for Export; Export list of High- and New-tech products; Law of the PRC
High — and new-technology industries (where PV industry also
on Scientific and Technological Progress (Order N.82 of the President
belongs). Provisional Regulations on Management of National Science
of the PRC); Provisional Regulations on Management of National
and Technology Plan and Provisional Measure on management of
Science and Technology Plan and Provisional Measure on Management
national science and technology plan project are also both directly
of National Science and Technology Plan Project.
involved in the organisation and functioning of some PV projects.

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5.12.2013
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L 325/85
therefore does not enable the GOC to exercise its right of
possess such information and that it only submitted
defence in proper way. This claim does not represent
information in this respect after the Commission pointed
reality. In the questionnaire the Commission asked very
out that Article 24 of the Commercial Bank Law actually
specific questions and, in line with normal practice of
requires banks to report this information to the CBRC.
many investigating authorities it attempted to verify the
When the Commission inquired during the verification
GOC answers during the on spot verification visit.
visit what was the source of this information, the CBRC
official present stated that he did not know as another
department of the CBRC is responsible for the collection
of such data. According to Article 2 of the Interim Regula
tions on the Boards of Supervisors in Key State-owned Finan
cial Institutions (submitted by EXIM Bank in its reply to
the deficiency letter) ‘the list of state-owned financial institu
(124) In particular, the GOC in its reply to the questionnaire
tions to which the State Council dispatches boards of supervi
stated that ‘the loans to the industry concerned account
sors shall be recommended by the administrative organ for
for very small portion of the total loans granted. For
boards of supervisors in state-owned financial institutions’.
example, some banks have described in their appendix
Since this legal provision refers to the administrative
questionnaire that the loans granted to the industry
organ for boards of supervisors in state-owned financial
concerned accounted for less than 1 % of total loans’.
institutions, it seems that the GOC is aware of which
During the verification the GOC was not able to support
financial institutions it owns. Nevertheless, the Commis
this statement with any evidence at all and simply
sion was not able to verify this information or even to
referred the Commission to the banks.
identify the source of the information because of the
non-cooperation from the GOC. The publicly available
information suggests that there are also other state
owned banks (which provided loans to the sampled
exporting producers) in addition to those reported by the
GOC in its reply to the deficiency letter (1).
(125) The Commission also requested statistics on the loans to
the industry concerned. The GOC claimed that it does
not keep such records. When the Commission inquired
whether the GOC attempted to compile such statistics
and requested this information from the banks the CBRC
(Banking regulatory authority in the PRC) official present
during the verification replied that he did not know
about this as another department in the CBRC would be
responsible for statistics. No statistics as requested in the
questionnaire and repeatedly in the deficiency process
were submitted by the GOC. The Commission indicated
again in its pre-verification letter that this topic would be
covered.
(128) In its letter of 3 June 2013 the GOC claimed that the
Commission did not either in its questionnaire or in the
deficiency letter, ‘ask for the “supporting evidence or data
source”’ and ‘now suddenly alleges lack of supporting
evidence or data source’. To set the record straight the
Commission, like any other investigating authority, veri
(126) With regard to banks, the Commission also inquired
fies the data submitted by all parties in the proceeding
during the verification visit about the risk and credit
and the GOC was aware of this as Commission pointed
worthiness
assessment,
overall
operating
situation,
out already in its questionnaire and in the cover letter to
management situation, credit level, financial usage, repay
the questionnaire that the replies could be subject to veri
ment ability, guarantee pattern and business cooperation
fication. Moreover, in its pre-verification letter the
between the banks and the borrowers, as the GOC made
Commission included also this particular topic among
claims concerning these issues in its reply to the ques
the issues to be covered during the verification (2). There
tionnaire. Again, despite the fact that these topics were
fore the fact that the Commission is asking for
indicated in the pre-verification letter the GOC was not
supporting evidence of the statements made by the GOC
able to provide any evidence supporting its own claims
was certainly not a surprise for the GOC but the standard
and referred the Commission to the banks.
procedure followed but the Commission in each and
every case.
(1) E.g. China Bohai Bank, Guangdong Development Bank, Huishang
Bank, Bank of Shanghai, Shenzhen Development Bank.
(2) Commission pre-verification letter of 25 March 2013, page 7: ‘The
Commission will seek explanations concerning the information
requested in Appendix A of the questionnaire. The questions raised
(127) In its reply to the deficiency letter the GOC submitted
during verification will cover points a) to r) of the Appendix A’. Point g)
some information concerning the percentage of govern
of the Appendix A: List each shareholder of the bank/financial institu
tion who owned at least 1 % of the shares or of the value of the
ment ownership in some banks. It is noted that initially
company and list the activities of these shareholders in Excel table
the GOC in the questionnaire reply stated that it does not
Appendix A–1.

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L 325/86
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(129) When, during the verification, the Commission asked the
are based merely on simple assertions of state share
GOC to submit a list of 10 biggest banks in the PRC and
holding which in turn are based on ‘illegal’ determina
the share of the market they represent, the CBRC replied
tions in the Coated Fine Paper case. This claim is a misin
that it is able to submit such information but that it
terpretation of facts in the complaint. In the complaint,
could not answer the question before it was submitted in
the complainant, in addition to the state ownership,
a written format. The Commission explained that a ques
refers, inter alia, to the loans provided by banks based on
tion asked during the verification visit orally has the
political directives, to the government agencies directing
same validity as any questions submitted in writing and
financial institutions to increase credit and lending to
pointed to the fact that for the other oral questions the
enterprises for promoting new technologies and products
GOC did not request their submission in writing before
(including the PV industry). The Coated Fine Paper findings
replying. In spite of this clarification, the GOC still did
on Chinese banks being public bodies were based on
not provide the information.
more elements than merely ownership (e.g. government
intervention and guidance of banks to direct preferential
lending to the paper industry via Government plans) and
these findings are fully in line with EU and WTO law. In
addition, the findings on the status of state-owned banks
as public bodies were confirmed in Organic Coated Steel as
well.
(130) In the questionnaire the Commission requested docu
ments which were the basis for the establishment of the
CBRC and provided it with the mandate. The GOC
submitted a document from the National People's
Congress simply stating that the CBRC shall be created.
When the Commission inquired whether there are any
other documents specifying the mandate and purpose of
the CBRC, the CBRC official present stated that there are
many other laws concerning the CBRC but that, if the
Commission wanted to obtain these documents it should
(133) The GOC also continued to claim that it was not in its
have requested them before the verification. It is noted
practical ability to provide information on 3,800 banks
that in the questionnaire the Commission requested the
and financial institutions which exist in the PRC and that,
GOC to ‘provide documents which were the basis for the estab
in any event the CBRC does not retain records
lishment of this authority and provided it with the mandate’
concerning the percentage of government ownership in
and therefore, it had requested these documents before
banks. The Commission does not understand why the
the verification.
GOC is referring repeatedly to all banks in the PRC in
connection with the GOC ownership in them when the
information requested was explicitly limited to those
banks ‘where the GOC has direct or indirect shareholder
ship’ (2). As explained in recital (127) above the claim of
the GOC that the CBRC (or any other government
authority) does not retain records on its ownership share
(131) When the Commission requested statistics and reports
of the banks seems to be in contradiction with several
from the banks which provided loans to the sampled
Chinese legal provisions.
exporters for the IP it pointed to Article 33 of the Law of
the PRC on Regulation of and Supervision over the Banking
Industry (1) which suggests that the CBRC collects such
statistics. The CBRC official present stated that he had to
seek permission from the legal department first but he
did not provide any information in this respect before
the end of the verification. Again it must be noted that
the Commission requested this information in the ques
tionnaire and deficiency letter and it had indicated in its
pre-verification letter that statistics would be a topic for
(134) In its letter of 3 June 2013 the GOC repeated its claim
the verification.
that it does not have the authority to require ‘indepen
dent banks’ to produce confidential information and
pointed to the letter that had allegedly been sent to the
banks on this matter. It is true that during the verification
the GOC showed the original of the letter intended for
the banks, but when the Commission requested the GOC
(132) The GOC further claimed that the allegations in the
to submit evidence to show to which banks and financial
complaint concerning Chinese banks being public bodies
institutions this letter was sent the GOC was not able to
provide such evidence. The GOC also alleged that some
of the institutions indicated in Annex 7 to the deficiency
(1) Article 33 of Law of the PRC on Regulation of and Supervision over the
Banking Industry:The banking regulatory authority shall, in light of the
letter were not banks. In this regard the Commission
need for performing its duties, have the power to require the financial
notes that these institutions had been notified to the
institutions of the banking industry to submit, in accordance with rele
Commission by the sampled exporting producers as insti
vant regulations, their balance sheets, profit statements, other financial
tutions which extended loans to them.
accounting statements, statistical reports and information concerning
business operations and management, as well as the audit reports
prepared by certified public accountants.
(2) Commission deficiency letter of 30 January 2013, question C-III-A.A.

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Official Journal of the European Union
L 325/87
(135) The GOC claimed that the Commission never addressed
(i) Preferential policy loans, other financing, guarantees
the issue of the PBOC Circulars YinFa [2003] and [2004]
and insurance
in its questionnaire or in the deficiency letters. It is noted
that in the pre-verification letter the Commission
included ‘PBOC regulations/circulars/internal documenta
— Preferential policy loans;
tion concerning interest rates regulation in the PRC’
amongst the topics to be covered during the verification.
It is obvious that both circulars fall into this category. In
— Provision of credit lines;
its reply to the deficiency letter the GOC even referred to
an article on the PBOC website which referred to one of
the circulars. However the GOC did not provide any
— Export credit subsidy programmes;
circulars from PBOC at all and only submitted informa
tion from the PBOC website which was incomplete in
respect of the governance of interest rates on loans and
— Export Guarantees and Insurances for Green
deposits in China when compared to Circulars YinFa
Technologies;
[2003] and [2004] which are both available on the web.
It is also noted that the GOC did not refuse to submit
— Benefits provided through granting of access to
these documents on the basis that it was not prepared
for such question but rather because of the alleged confi
offshore holding companies and loan repayments
dentiality of the circulars. In this regard it must be noted
by the government;
that the GOC's claim concerning the confidentiality of
the PBOC circulars is inconsistent with its own practice
(ii) Grant Programmes
in this proceeding. In its comments to definitive disclo
sure the GOC submitted full version of another PBOC
Circular to support its claim that the special loans
— Export product research development fund;
provided by state-owed commercial banks (SOCBs) were
repealed and the confidentiality alleged elsewhere did not
seem to be an obstacle. In respect to the extracts from
— Subsidies for development of ‘Famous Brands’
the PBOC website, the Commission took note of them
and China World Top Brands Programme;
and, did not disregard their content. However to have the
complete information on the matter also required the
information in the two circulars which complemented
— Funds for outward expansion of industries in
the information submitted by the GOC.
Guandong Province;
— The Golden Sun demonstration programme;
(iii) Direct Tax Exemption ad Reduction programmes
3.3. Individual Examination (‘IE’)
— The two free/three half programme for foreign
invested enterprises (FIEs);
(136) Claims for IE were submitted by 6 cooperating exporting
producers pursuant to Article 27(3) of the basic Regu
lation, i.e. companies CNPV Dongying Solar Power Co.
— Income tax reduction for export-oriented FIEs;
Ltd., Jiangsu Runda PV Co., Ltd., Kinve Solar Power Co.,
Ltd (Maanshan), Phono Solar Technology Co. Ltd., Shan
dong Linuo Photovoltaic Hi-Tech Co. Ltd., and Shandong
— Income tax benefit for FIEs based on geogra
Linuo Solar Power Holdings Co. Ltd. It was not possible
phical location;
to grant these companies individual examinations as, due
to the high number of alleged subsidy schemes and time
consuming nature of the investigation, it would be
— Tax reduction for FIEs purchasing Chinese-made
unduly burdensome and could prevent completion of the
equipment;
investigation in good time.
— Tax offset for research and development by FIEs;
— Tax refunds for reinvestment of FIE profits in
export oriented enterprises;
3.4. Specific Schemes
— Preferential tax programmes for FIEs recognised
as high or new technology enterprises;
(137) On the basis of the information contained in the
complaint the Commission sought information related to
the following schemes, which allegedly involved the
— Tax reduction for high and new-technology
granting of subsidies by the Governmental authority:
enterprises involved in designated projects;

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L 325/88
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Official Journal of the European Union
5.12.2013
— Preferential income tax policy for enterprises in
banks where the GOC is the largest or sole shareholder,
the northeast region;
banks where the GOC has a shareholding stake but is not
the largest shareholder, banks where the GOC is not a
shareholder and banks which are foreign owned, to both
— Guandong province tax programmes;
industry as a whole and to the industry concerned by
this proceeding. The GOC replied that it does not retain
records of the amounts and percentages of the loans
(iv) Indirect Tax and Import Tariff Programmes
provided by the state-owned banks and that the GOC
also does not retain the records of loans for the PV
industry. The GOC did not suggest any alternative source
— VAT exemptions and import tariff rebates for the
for this information.
use of imported equipment;
— VAT rebates on FIE purchases of Chinese-made
equipment;
— VAT ad tariff exemptions for purchases of fixed
assets under the foreign trade development funds
(139) The
Commission attached a specific questionnaire
programme;
(Appendix A) intended for the banks/financial institutions
to the initial anti-subsidy questionnaire and asked the
GOC to forward it to the banks/financial institutions
(v) Government provision of goods and services for less
which provided loans to the industry concerned. The
than adequate remuneration
purpose of Appendix A was to verify allegations in the
complaint that Chinese state-owned banks are public
bodies. Inter alia, the Commission sought information
— Government provision of polysilicon for less
concerning the structure of government control in those
than adequate remuneration;
Chinese banks and the pursuit of government policies or
interests with respect to the photovoltaic industry (i.e.
board of directors and board of shareholders, minutes of
— Government provision of aluminium extrusions
shareholders/directors meetings, nationality of share
for less than adequate remuneration;
holders/directors, lending policies and assessment of risk
with respect to loans provided to the cooperating
exporting producers). In the reply to the questionnaire,
— Government provision of glass for less than
the GOC submitted a reply to Appendix A only for five
adequate remuneration;
banks (the China Development Bank (CDB), the EXIM
Bank, the Bank of Shanghai, the Bank of China (1) and
the Huaxia Bank). In the deficiency letter, the Commis
— Government provision of power;
sion repeated its initial request for information. To facili
tate the cooperation of the GOC, it provided a list of
banks/financial institutions which provided loans to
— Government provision of land and land-use
sampled companies and asked again the GOC to forward
rights for less than adequate remuneration.
Appendix A to these entities. No additional replies to
Appendix A were submitted with the reply to the defi
ciency letter.
3.4.1. Preferential policy loans, other financing, guarantees
and insurance
(a) Non-cooperation and
the
use
of
facts
(140) The Commission also sought information about the state
available
ownership of the banks and financial institutions. In its
questionnaire reply, the GOC stated that it does not
retain any records concerning the ownership shares and
it did not provide any suggestion on how to obtain this
information. When the Commission, in its deficiency
letter, pointed out that it is mandatory to include this
information in the Articles of Association of the banks
— Financial market and institutions in China