EU EU-Domstolen 2026-10-22 C-64/25

Opinion of Advocate General Biondi delivered on 22 October 2026 (C-64/25)

OPINION OF ADVOCATE GENERAL

BIONDI

delivered on 22 October 2026 (1)

Case C‑64/25 P

BT Solar d.o.o.,

RC-Log d.o.o.

Zhejiang Beyondsun Green Energy Technology Co. Ltd,

European Commission

( Appeal – Dumping – Subsidies – Imports of crystalline silicon photovoltaic modules and cells originating in or consigned from China – Definitive anti-dumping and countervailing duties – Article 8(9) of Regulation (EU) 2016/1036 – Article 13(9) of Regulation (EU) 2016/1037 – Price undertakings – Scope ratione temporis – Invalidation of invoices – Customs regime applicable to imports released for free circulation )

I. Introduction

1. A price undertaking is a voluntary commitment entered into by an exporting producer to sell its products at or above a minimum price in order to eliminate the injurious impact of dumping. If accepted by the European Commission, it allows the exporting producer to avoid the imposition of anti-dumping or anti-subsidy duties, provided, of course, that the terms of the price undertaking are fully complied with.

2. The present case mainly concerns the scope ratione temporis of price undertakings under EU anti-dumping and anti-subsidy law. (2) In particular, the Court is called upon to clarify the legal consequences of a breach of an undertaking committed while that undertaking was in force, where the imports concerned are subsequently released for free circulation after its repeal.

3. The case concerns an appeal lodged by two companies – BT Solar d.o.o., and RC-Log d.o.o. (‘the appellants’, formerly interveners at first instance) – against a judgment of the General Court of the European Union (3) (‘the judgment under appeal’). By that judgment, the General Court dismissed an action brought by Zhejiang Beyondsun Green Energy Technology (‘Zhejiang’), a Chinese manufacturer of solar modules, seeking annulment of Commission Implementing Regulation (EU) 2020/1216 (4) (‘the regulation at issue’). By that implementing regulation, the Commission invalidated invoices issued by Zhejiang in breach of the price undertaking offered and accepted in connection with the anti-dumping and anti-subsidy proceedings concerning imports into the European Union of crystalline silicon photovoltaic modules and cells originating in or consigned from China (‘the undertaking’).

A. The anti-dumping and anti-subsidy duties

4. In essence, (5) in 2013, the EU imposed anti-dumping and anti-subsidy duties on the abovementioned imports under Council Implementing Regulation (EU) No 1238/2013 (6) and Council Implementing Regulation (EU) No 1239/2013, (7) respectively.

5. In 2017, those duties were extended under Commission Implementing Regulation (EU) 2017/367 (8) (‘the expiry review anti-dumping regulation’) and Commission Implementing Regulation (EU) 2017/366 (9) (‘the expiry review anti-subsidy regulation’), respectively. Those two regulations imposed the anti-dumping and anti-subsidy duties in force at the material time for the present proceedings.

B. The undertaking

6. In 2013, the China Chamber of Commerce for Import and Export of Machinery and Electronic Products (‘the CCCME’), a Chinese industry body representing Chinese exporting producers of solar modules, offered the undertaking on behalf of Zhejiang, among others. The Commission accepted the undertaking by Decision 2013/423/EU (10) and subsequently confirmed that acceptance by Decision 2013/707/EU. (11)

7. Under the terms of the undertaking, exporting producers which had cooperated in the initial investigation, including Zhejiang, agreed, inter alia, not to sell the products concerned to the first independent customer in the European Union below a certain minimum import price (‘the MIP’), as defined in the undertaking. (12)

8. The undertaking provided for a quota system. Under that system, the exporting producers undertook to sell at or above the MIP until the quota had been exhausted. In order to benefit from the exemption from the duties, the sales included within the quota were required to be accompanied by an ‘undertaking invoice’, the requirements for which were laid down in Annex III and Annex 2 to the expiry review anti-dumping and anti-subsidy regulations, respectively.

9. Once the quota had been reached, and only then, the companies were free to sell the goods at any price. In order not to be subject to the duty applicable to non-cooperating companies and thus to benefit from the company-specific (lower) rate of duty, those sales in excess of the quota had to be accompanied by a ‘commercial invoice’, the requirements for which were laid down in Annex V and Annex 4 to those regulations, respectively. (13)

10. Under the terms of the undertaking the exporting producers also undertook not to issue invoices that were not in conformity with any one of the obligations pursuant to the undertaking. (14) Moreover, the undertaking provided for obligations on the CCCME and the exporting producers to submit detailed sales reports to the Commission to enable that institution to monitor compliance with the undertaking. (15) The submission of false or misleading information could lead the Commission to withdraw acceptance of the undertaking. (16)

11. The undertaking also specified what constituted a breach, (17) which included, in particular:

– issuing a commercial invoice for which the net sales price was not in conformity with the MIP before the quota had been reached; (18)

– issuing a commercial invoice for which the underlying financial transaction was not in conformity with the face value of the invoice. (19)

12. On 15 September 2017, the Commission repealed the undertaking by Implementing Regulation (EU) 2017/1570 (20) (‘the repeal regulation’), replacing it with an obligation to pay a variable duty minimum price (‘the variable duty MIP’). (21) The repeal regulation entered into force on 1 October 2017.

C. The imports concerned

13. In August and September 2017, Zhejiang sold solar modules to BT Solar (‘the imports concerned’). Between 23 August and 13 September 2017, Zhejiang issued a first set of 12 undertaking invoices to BT Solar. The price indicated on these invoices was in line with the MIP under the undertaking.

14. On 20 September 2017, that is to say, after the adoption of the repeal regulation, but before its entry into force, Zhejiang issued a second set of (revised) invoices for the imports concerned. Zhejiang used the same invoice numbers and invoice dates as for the undertaking invoices, but lowered the price. The new price indicated was below the MIP pursuant to the undertaking, but was in line with the variable duty MIP under the repeal regulation.

15. Between 6 October and 2 November 2017, that is to say, after the entry into force of the repeal regulation, the imports concerned were released for free circulation in the European Union. RC-Log acted as the EU customs declarant for the imports concerned.

D. The regulation at issue

16. Following submission to the Commission by the Slovenian customs authorities of evidence regarding Zhejiang’s non-compliance with the undertaking and the comparison of that evidence with information submitted to the Commission by Zhejiang itself, under its quarterly reporting obligations pursuant to the undertaking, the Commission adopted the regulation at issue.

17. In the regulation at issue, the Commission found that for each transaction related to the imports concerned, Zhejiang, before the entry into force of the repeal regulation, issued both an undertaking invoice and a commercial invoice.

18. The Commission considered that as long as the undertaking was in force and the annual quota had not been reached, Zhejiang was prohibited from issuing commercial invoices pursuant to Annex V and Annex 4 to the expiry review anti-dumping and anti-subsidy regulations, respectively. It therefore considered that, by nevertheless issuing commercial invoices in parallel to the undertaking invoices and for the same transactions, Zhejiang breached that prohibition. (22) It also found that Zhejiang reported the invoices to the Commission as undertaking invoices, but stating a higher price than that shown on the invoices presented to the Slovenian customs authorities. That conduct infringed its reporting obligations under the undertaking. (23)

19. The Commission found that Zhejiang had committed four breaches of the undertaking by:

– first, issuing undertaking invoices for which the underlying financial transactions were not in conformity with the MIP;

– second, issuing undertaking invoices that did not comply with the content requirements stipulated in the undertaking;

– third, reporting a sales price in conformity with the MIP applicable at the date of the invoice, when in reality the sales price on the ordinary commercial invoice was lower than that reported to the Commission; and

– fourth, issuing in parallel commercial invoices pursuant to Annex V and Annex 4 to the expiry review anti-dumping and anti-subsidy regulations, respectively. (24)

20. Consequently, the Commission, first, invalidated the invoices relating to the imports concerned and ordered that those invoices could not be accepted by custom authorities as commercial invoices pursuant to Annex V and Annex 4 to the expiry review anti-dumping and anti-subsidy regulations, respectively. (25)

21. Second, the Commission removed Zhejiang, as of 1 October 2017, from the new Annex VI and Annex 5 to the expiry review anti-dumping and anti-subsidy regulations, respectively, as amended by the repeal regulation, thereby removing Zhejiang from the list of legal entities to which the variable duty MIP, introduced by the repeal regulation, would be applicable. (26)

E. The judgment under appeal

22. Zhejiang brought an action before the General Court seeking annulment of the regulation at issue. The appellants were admitted as interveners at first instance.

23. By the judgment under appeal, the General Court dismissed the action in its entirety.

II. The appeal

24. By their appeal, the appellants ask the Court of Justice to: set aside the judgment under appeal; uphold the application at first instance and annul the regulation at issue; or, in the alternative, to: refer the case back to the General Court; and order the Commission to pay the costs of the first instance and appeal proceedings; or, in the alternative, to reserve the costs for final judgment by the General Court.

25. The Commission asks the Court to: dismiss the appeal as inadmissible or, in the alternative, as unfounded; and order the appellants to pay the costs.

26. In support of their appeal, the appellants rely on two grounds of appeal.

A. Admissibility of the appeal

1. Brief summary of the arguments of the parties

27. The Commission submits that the appeal is inadmissible.

28. First, according to the Commission, the appellants have not provided evidence that the judgment under appeal directly affects them. They merely claim that the Slovenian customs authorities issued a post-clearance recovery note for approximately EUR 4 million and did not provide any information about pending litigation before the Slovenian courts concerning that recovery note.

29. Second, the Commission submits that the requirements for bringing an appeal against a decision of the General Court under the second paragraph of Article 56 of the Statute of the Court of Justice of the European Union (‘the Statute’) are more demanding than those for the admissibility of an intervention under the second paragraph of Article 40 of the Statute. Therefore, the sole fact that the appellants were admitted as interveners before the General Court is not sufficient for the appeal to be admissible. According to the Commission, the appellants needed to demonstrate that they could themselves have brought an action for annulment against the regulation at issue. However, as importers, they lack standing to do so.

30. The appellants dispute the Commission’s arguments.

2. Analysis

31. The appellants are, respectively, an importer of solar modules, to which the invoices invalidated by the regulation at issue were addressed (BT Solar), and the customs declarant for the imports concerned (RC-Log). They were admitted to intervene before the General Court in support of Zhejiang’s action for annulment against the regulation at issue.

32. Interveners other than the Member States and the institutions of the Union (‘non-privileged interveners’) may bring an appeal, in accordance with the second sentence of the second paragraph of Article 56 of the Statute, only where the decision of the General Court directly affects them.

33. It emerges from the case-law that, in order to bring an appeal against a judgment delivered by the General Court, it is not sufficient for an intervener at first instance to fulfil the condition under the second paragraph of Article 40 of the Statute – namely that the person concerned establish an interest in the result of a case submitted to the Court – and thus to have been granted leave to intervene before the General Court. (27)

34. Accordingly, the mere fact that an intervener at first instance supported the form of order sought by one of the parties to the action for annulment brought before the General Court is not sufficient to establish that that intervener is directly affected by the judgment by which that action was decided. In order for its appeal to be admissible, the intervener at first instance needs to establish that the judgment is liable to affect it directly. (28)

35. The case-law of the Court addressing the issue of the admissibility of appeals brought by non-privileged interveners, albeit not abundant, offers useful guidance in understanding when an intervener at first instance may be considered to be directly affected by the judgment of the General Court.

36. Thus, in the case which gave rise to the judgment in Falck, (29) the intervener at first instance and appellant (Falck SpA) had sold to a third party an undertaking that had received unlawful and incompatible State aid. The sales contract provided that if the action brought by that undertaking against the Commission’s decision recovering the aid failed, Falck would have to reimburse the buyer for the amount recovered. The Court held that the judgment of the General Court dismissing the action directly affected Falck, as Falck could be held liable for the full reimbursement of the aid and, pending final resolution of the case, was required at the very least to set aside a financial provision to cover that risk. The Court noted that, by dismissing the action, the General Court maintained that burden on Falck, whereas a contrary ruling would have lifted it.

37. A subsequent case, which gave rise to the judgment in International Power, (30) concerned an appeal brought by interveners at first instance against a judgment of the General Court annulling a Commission decision rejecting a competition law complaint. The Court of Justice held that the appellants were ‘directly affected’ because complying with the judgment required the Commission to re-examine the complaint, which could have led to adverse measures against them, exposing them to potential damages claims in national courts.

38. In judgment in Changmao, (31) the Court held that the intervener at first instance and appellant was directly affected by the judgment at first instance because of the risk that measures adopted by the Commission to comply with that judgment would be detrimental to it, exposing it to actions for payment of higher anti-dumping duties.

39. It follows from that case-law, first, that an appellant is ‘directly affected’ within the meaning of the second sentence of the second paragraph of Article 56 of the Statute where the judgment at first instance entails a material adverse effect for the appellant in so far as it brings about a detrimental change in that party’s own legal position or adversely affects its own economic or moral interests. (32) In all the cases cited above, the Court considered that the intervener/appellant was directly affected by the judgment at first instance because that judgment maintained a situation from which negative consequences could arise for the intervener. (33)

40. Second, it follows from that case-law that an intervener seeking to establish that a judgment of the General Court directly affects it is not required to demonstrate that it could itself have brought an action for annulment against the act contested at first instance. The second sentence of the second paragraph of Article 56 of the Statute and the fourth paragraph of Article 263 TFEU lay down different conditions governing different remedies. Whether an intervener would have had standing to challenge the underlying measure is therefore irrelevant to determining whether it may appeal against the General Court’s judgment.

41. In the present case, the appellants have submitted before the Court a post-clearance recovery note issued by the Slovenian customs authorities for approximately EUR 3.9 million in anti-dumping and countervailing duties plus interest for the payment of which the appellants are jointly and severally liable with Zhejiang. The recovery note found that those duties were not levied at the time of the release of the goods concerned into free circulation and had to be recovered following the Commission’s invalidation of the invoices submitted to the Slovenian customs authorities. The recovery note explicitly refers to and is based on the regulation at issue. The appellants also clarify that payment of the recovery note is suspended pending the outcome of litigation before the Slovenian courts.

42. Against that background, if Zhejiang’s action at first instance against the regulation at issue – which invalidated the invoices and removed that company from the list of entities entitled to benefit from the variable duty MIP – were upheld and the regulation at issue annulled, the legal premiss for issuing the recovery note would cease to exist. Consequently, the appellants could no longer be held jointly and severally liable for the anti-dumping and countervailing duties (plus interest) specified in that recovery note.

43. By dismissing Zhejiang’s action against the regulation at issue, the judgment under appeal maintained the basis of the recovery note and therefore the basis on which the appellants’ customs debt is payable. That judgment therefore maintained a situation from which negative consequences could arise for the interveners, in the same way as in the cases referred to in point 39 above. It is therefore necessary to set aside the judgment under appeal dismissing the action at first instance in order to remove the adverse effects caused to the appellants by the recovery note, which is based on the regulation at issue.

44. It follows from the above considerations that, in my view, the appellants have established that the judgment under appeal directly affects them within the meaning of the second sentence of the second paragraph of Article 56 of the Statute. Accordingly, the appeal is admissible.

B. The first ground of appeal

45. By their first ground of appeal, the appellants allege that the General Court erred in law in finding that the regulation at issue did not infringe Article 8 of the basic anti-dumping regulation and Article 13 of the basic anti-subsidy regulation and was not vitiated by a manifest error of assessment.

1. Background to the dispute

46. Before the General Court, Zhejiang, supported by the appellants, argued that the Commission infringed the abovementioned provisions and made a manifest error of assessment in the regulation at issue. Specifically, Zhejiang disputed the finding that it had acted in breach of the undertaking by issuing invoices with a revised price – aligned with the variable duty MIP – for imports released for free circulation after the undertaking had been repealed. (34)

47. The General Court found that on 20 September 2017 – after the publication of the repeal regulation, but before its entry into force – Zhejiang had agreed with BT Solar to revise the price stated in the invoices issued between 23 August and 13 September 2017. That revision was aimed at reducing the price to a level in line with the variable duty MIP, but lower than the MIP provided for in the undertaking. (35)

48. The General Court found that, consequently, Zhejiang had agreed to sell products covered by the undertaking to BT Solar, at a price that was lower than the MIP provided for in the undertaking on a date on which the undertaking was still in force. On that basis, the General Court concluded, first, that by agreeing such a price, Zhejiang acted in breach of the undertaking and, second, that Zhejiang was not yet entitled to issue invoices under the variable duty MIP scheme. (36)

49. The General Court also found that Zhejiang submitted the revised invoices to the Slovenian customs authorities, but failed to inform the Commission that the initial undertaking invoices, which it had nonetheless declared to the Commission, had been amended and that the price stated therein had been revised downwards. The General Court concluded that that circumstance was also contrary to the prohibition on the submission of false or misleading information under the undertaking. (37)

50. The General Court rejected Zhejiang’s argument relating to the need to rely on the date of release for free circulation of the goods concerned. It considered that it was ‘difficult to conceive’ that invoices might be subject to the variable duty MIP scheme, when the regulation introducing that scheme had not yet been published and had not yet entered into force. For the same reason, the General Court rejected Zhejiang’s argument according to which it could legitimately expect that the variable duty MIP scheme would apply to the goods covered by those invoices, even when these had been issued prior to the entry into force of that scheme. (38)

2. Brief summary of the arguments of the parties

51. The appellants submit that by considering that the invoice date determines whether the undertaking applied to the imports concerned, the General Court committed an error in law relating to the application ratione temporis of the undertaking. According to the appellants, the General Court’s interpretation is wrong because whether or not the undertaking applied to the imports concerned depends not on the invoice date, but on the date of their release for free circulation. Since the imports concerned were released for free circulation between 6 October and 2 November 2017, that is to say, after the repeal of the undertaking on 30 September 2017, the undertaking did not apply to the imports concerned. Therefore, Zhejiang did not infringe the undertaking in respect of the imports concerned. According to the appellants, their interpretation of the scope ratione temporis of the undertaking rests on four premisses.

52. First, their interpretation follows explicitly from the repeal regulation, from Article 172(2) of the Union Customs Code, (39) and from Article 2(1) of the expiry review anti-dumping regulation and Article 2(1) of the expiry review anti-subsidy regulation. All of those provisions apply ratione temporis on the basis of when the imports are released for free circulation. None of those provisions considers the invoice date to be relevant for custom duties.

53. Second, according to the appellants, their interpretation aligns with the general objectives of the anti-dumping and anti-subsidy rules and in particular with the fact that the date of release for free circulation determines whether goods are subject to anti-dumping or anti-subsidy duties. Undertakings, which are a form of anti-dumping and anti-subsidies measure, should therefore be applicable on the same basis.

54. Third, the General Court ignored the fact that the Commission itself explicitly stated in writing in a communication to the CCCME that the date of release for free circulation determined whether the undertaking applied.

55. Fourth, the General Court’s interpretation to the effect that the undertaking applied to the imports concerned resulted in a breach of the principle of proportionality. Moreover, the legitimate expectations of the appellants that no anti-dumping and anti-subsidy duties would be due on the imports concerned have been infringed.

56. The Commission disputes the appellants’ arguments.

3. Analysis

57. Since the first ground of appeal raises the issue of the scope ratione temporis of the undertaking, I shall begin by briefly recalling the framework governing undertakings under EU anti-dumping and anti-subsidy law in the light of the existing case-law (Section (a)), before turning to the appellants’ arguments (Section (b)).

(a) Undertakings under EU anti-dumping and anti-subsidy law

58. Undertakings can be defined as a form of trade defence measure whereby an exporting producer makes a voluntary commitment – which the Commission formally accepts – to revise its export prices or to cease exporting at dumped or subsidised prices, to a level sufficient to eliminate the injurious effect of the dumping or subsidies. (40)

59. Provided for under both the WTO Anti-Dumping Agreement (41) and the WTO Agreement on Subsidies and Countervailing Measures (42) undertakings are governed in EU law by Article 8 of the basic anti-dumping regulation and Article 13 of the basic anti-subsidy regulation.

60. Under those provisions, there is no obligation on exporting producers to offer or enter into undertakings. (43) The Commission enjoys a broad margin of discretion as to whether it accepts an undertaking. The only substantive condition for the Commission to be able to accept an undertaking is the condition that the undertaking satisfactorily eliminate the injurious effect of the dumping or subsidies. (44)

61. The acceptance of an undertaking by the Commission results in the non-application, as long as the undertaking is in force and under the terms of the undertaking, of the anti-dumping or anti-subsidy duties imposed on imports of the product concerned manufactured by the exporting producers whose undertaking has been accepted. (45) Thus, by virtue of the undertaking, the application of the anti-dumping or anti-subsidy duty is effectively ‘suspended’ for as long as the undertaking remains in force. (46)

62. As the Court made clear, the fundamental objective of the provisions of the EU anti-dumping and anti-subsidy laws on undertakings is to guarantee the elimination of the injurious effects of dumping and subsidies suffered by the EU industry. (47)

63. In that context, the acceptance of an undertaking establishes a relationship of cooperation and trust between the exporting producer and the Commission. The producer is therefore required to cooperate with the Commission and to allow the monitoring of compliance with the undertaking. (48) That circumstance also explains why, as a general rule, the Commission does not accept undertakings from exporting producers which did not cooperate or did not sufficiently cooperate in the investigation. (49)

64. In the event of a breach of an undertaking, the Commission may withdraw the acceptance of the undertaking, and the anti-dumping or anti-subsidy duties ‘shall automatically apply’. (50) In that regard, the case-law makes clear that any breach of an undertaking including failure to cooperate in its implementation and monitoring may justify withdrawal irrespective of the seriousness of the breach. (51) The Commission enjoys discretion in deciding whether, in accordance with the principle of proportionality, it is necessary to withdraw acceptance of the undertaking in the event of a breach. (52)

65. The Court has further clarified that the ‘automatic application’ of the duty in the event of the withdrawal of acceptance of an undertaking by the Commission must be interpreted as the application of the duty initially imposed, and which, as mentioned in paragraph 61 above, was suspended for ‘as long as’ the undertaking was in force. (53)

66. As regards the application ratione temporis of undertakings, their temporal scope stems from their specific nature outlined above as an anti-dumping or anti-subsidy regime based on a sui generis act combining elements of a unilateral commitment and of an administrative agreement.

67. Consequently, as a contractual-type commitment by the exporter, an undertaking enters into force and produces its effects, in principle, when it is formally accepted by the Commission. It ceases to produce effects when it lapses, when it is repealed or when – for a given exporting producer – the Commission withdraws its acceptance or the producer itself withdraws from the undertaking. It is clear that, after its repeal, an undertaking produces no legal effects after the date of entry into force of the repealing act.

(b) The appellants’ arguments

68. The appellants do not dispute the Commission’s finding – confirmed by the General Court – that Zhejiang engaged in the conduct described in point 19 above, thereby acting in breach of the obligations laid down in the undertaking at a time when it was still in force.

69. What the appellants dispute is the application ratione temporis of the undertaking. According to the appellants, the relevant moment determining the applicability of undertakings is the time at which the products are released for free circulation and not the date on which the invoices are issued. In the present case, since that release occurred after the undertaking had been repealed, the regime established by the undertaking could not, according to them, apply to the imports concerned. That reasoning has the consequence that, in the present case, Zhejiang did not act in breach of the undertaking since the regime of the undertaking was in any event not applicable to the imports concerned at the time of the release for free circulation.

70. On the contrary, according to the appellants, under Article 172(2) of the Union Customs Code the new regime introduced by the repeal regulation was applicable to the imports concerned and the price invoiced for those imports in the revised invoices complied with the variable duty MIP applicable under that new regime.

71. At the outset, it is worth noting that the facts of the present case arose during the transition between two derogating anti-dumping and anti-subsidy regimes: the undertaking regime and the regime introduced by the repeal regulation. On the one hand, the invoices relating to the imports concerned were issued and amended while the undertaking was in force; on the other hand, those imports were released for free circulation under the new regime introduced by the repeal regulation. The repeal regulation contains no specific rules regarding that type of import operation occurring during the transitional period.

72. Against that background, in order to address the appellants’ arguments, I consider it necessary to distinguish between the scope ratione temporis of the undertaking (Section (1)), and the question of which derogating anti-dumping and anti-subsidy regime was applicable to the imports concerned (Section (2)). I shall then address the alleged breach of the principles of proportionality and of legitimate expectations (Section (3)).

(1) The scope ratione temporis of the undertaking

73. As noted in points 66 and 67 above, by its very nature a price undertaking comes into force and produces its effects on formal acceptance by the Commission and ceases to have effect – as far as the present case is concerned – when it is repealed. Consequently, in the present case the undertaking ceased to produce effects and was no longer applicable from the moment the repeal regulation entered into force, that is to say, on 1 October 2017. Accordingly, it is beyond doubt that, at the time of the release for free circulation of the imports in question, the customs regime provided for by the undertaking was not applicable to those imports.

74. The foregoing does not however mean that the imports concerned fell entirely outside the scope ratione temporis of the undertaking. Indeed, as noted above, although the goods were released for free circulation after the undertaking had been repealed, both the sales relating to those imports and the issuing and amendment of the corresponding invoices occurred prior to that date, falling therefore within the scope ratione temporis of the undertaking.

75. The appellants’ argument that the applicability of the undertaking to the imports concerned does not depend on the invoice date, but solely on the date of their release for free circulation, unduly narrows the scope of application of the undertaking, both temporally and as regards its subject matter.

76. An import operation is a complex process that encompasses several stages that take place at different moments in time, from concluding the commercial sales contract for the goods to be imported, to the final entry of those goods into the single market. In order to guarantee their effectiveness, undertakings necessarily cover and apply to the entire import operation throughout all its stages. Accordingly, an interpretation of Article 8(1) of the basic anti-dumping regulation and Article 13(1) of the basic anti-subsidy regulation, such as that envisaged by the appellants, that considers the date of release for free circulation to be the sole triggering event for the application of undertakings – thereby excluding from their scope prior commercial acts and obligations existing before that moment – is legally erroneous and runs counter to the very objective of undertakings. That follows, first, from the text of those provisions of the basic anti-dumping and anti-subsidy regulations, second, from the wording of standard undertakings, such as the undertaking, and, third, from their objective as clarified by the case-law.

77. First, Article 8(1) of the basic anti-dumping regulation and Article 13(1) of the basic anti-subsidy regulation define undertakings by reference to the revision of prices by exporters or to the cessation of exports at dumped prices. Those provisions do not define undertakings by reference to the release of goods for free circulation. Prices are established at the time the commercial transaction is concluded. It emerges from those provisions that the conduct that undertakings regulate is therefore the exporter’s pricing behaviour, which is fixed when the contract is concluded and reflected in the invoice, rather than the later customs event by which the goods enter the EU market.

78. Second, and consequently, a textual analysis of the undertaking shows that it provides for a series of obligations that cover the whole import transaction and that relate to points in time both before the moment of release for free circulation of the products (such as the obligations concerning invoicing) and after that moment (such as the reporting obligations).

79. Therefore, the undertaking explicitly applies to ‘direct sales’ of the product covered by the anti-dumping and anti-subsidy duties. (54) Direct sales are defined under Clause 1 of the undertaking as sales of those products manufactured by the company submitting the undertaking and invoiced and shipped to the EU customer. In the wording of the undertaking, its application to direct sales is in no way dependent on whether or not the goods sold to the EU customers are released for free circulation. (55)

80. Third, an interpretation that considers the date of release for free circulation to be the sole triggering event for the application of undertakings – thereby excluding their application at the time of the sales to EU customers and of the invoicing relating to the imported goods – would be difficult to reconcile with the fundamental objective of undertakings, namely to guarantee elimination of the injurious effects of dumping and subsidies suffered by the EU industry. (56) Indeed, a sale at non-compliant prices (infringing a price undertaking) is liable to cause immediate injury to the EU industry from the moment the transaction is concluded. (57) That circumstance also explains why undertakings impose obligations concerning sales, invoicing and reporting, which arise at different stages of the import transaction. Those obligations enable the Commission to monitor compliance and to ensure that the minimum price agreed upon is effectively respected. (58)

81. Fourth, it would make little sense for the undertaking to impose obligations concerning invoicing, which must be fulfilled before the goods are released for free circulation, if those obligations became applicable only at the time of that release, as the appellants claim. According to that interpretation, an exporting producer could issue an invoice in breach of the undertaking without that conduct constituting a breach at the time it occurred. Whether or not a breach had been committed would instead depend on the subsequent release of the goods for free circulation, an event which may take place weeks or months later and which is not necessarily within the producer’s control.

82. It follows from the foregoing considerations that the undertaking was applicable to the sales and invoicing relating to the imports concerned while it was in force. The triggering event for its application cannot therefore be limited, as the appellants submit, to the mere release for free circulation of the imports concerned.

83. The arguments raised by the appellants do not call that interpretation into question.

84. First, the appellants refer to paragraph 2 of Article 172 of the Union Customs Code, headed ‘Acceptance of a customs declaration’. That provision reads as follows: (59)

‘The date of acceptance of the customs declaration by the customs authorities shall, except where otherwise provided, be the date to be used for the application of the provisions governing the customs procedure for which the goods are declared and for all other import or export formalities.’

85. Under Article 172(2) of the Union Customs Code, (60) the moment of the release for free circulation is the moment that determines the custom procedure and regime applicable to the imports of goods.

86. In the case of anti-dumping and anti-subsidy duties, that provision determines the regime applicable to the goods imported and the duties due on those imports. As observed in point 73 above, in the present case it is uncontested that at the time of the release for free circulation of the imports concerned the undertaking was no longer applicable. The relevant customs regime in force at that time was that provided for by the expiry review anti-dumping and anti-subsidy regulations as amended by the repeal regulation.

87. The foregoing does not mean, however, that it can be inferred from Article 172(2) of the Union Customs Code, as the appellants submit, that (i) the undertaking became applicable to the imports concerned solely at the moment of their release for free circulation, that (ii) it was consequently inapplicable at the time when the goods were sold and the invoices were issued and amended, and that (iii) therefore no breach of the undertaking occurred or that any such breach was irrelevant.

88. Article 172(2) of the Union Customs Code is a provision aimed at determining the customs procedure and the customs regime applicable to imports. It is not a substantive anti-dumping or anti-subsidy provision aimed at determining the scope ratione temporis of undertakings as provided for by Article 8(9) of the basic anti-dumping regulation and Article 13(9) of the basic anti-subsidy regulation. (61) By referring to Article 172(2) of the Union Customs Code, the appellants conflate the scope ratione temporis of the undertakings with the regime applicable to the imports concerned.

89. As emerges from points 77 to 80 above, at the time of the issuing and amendment of the invoices, the undertaking was in force and the obligations on Zhejiang under the undertaking were applicable to the direct sales of the products to which the imports concerned relate. Consequently, the appellants cannot rely on Article 172(2) of the Union Customs Code to argue that Zhejiang’s conduct, described in point 19 above, which was not compliant with the obligations laid down in the undertaking, did not constitute a breach of the undertaking.

90. Second, the appellants refer to the general objectives of the anti-dumping and anti-subsidy rules. However, as is clear from point 80 above, the interpretation they propose in reality conflicts with the objective of undertakings as clarified by the Court’s case-law.

91. Third, the appellants refer to a communication from the Commission to the CCCME in the form of a question and answer document relating to the undertaking. (62) However, the answer concerned merely states that, under Article 172(2) of the Union Customs Code, the relevant MIP is the MIP applicable under the customs regime in force at the time of release for free circulation. That is consistent with points 85 and 86 above. That statement in no way supports an interpretation of the undertaking that its application was triggered solely as of the date of release for free circulation, or that its invoicing obligations were inapplicable at the time the invoices were issued.

92. In conclusion, it follows from the foregoing considerations: first, that undertakings cover the import operations in their entirety and their scope of application cannot be limited to the release for free circulation of the goods concerned; second, that, accordingly, in the present case, so long as the undertaking was in force it was applicable ratione temporis to the transactions relating to the imports concerned, namely to the direct sales and the invoicing of the products to which those imports related; third, that at the time of the issuing and amendment of the invoices relating to the sales concerning the imports concerned, Zhejiang was bound by the undertaking, and therefore, by engaging in the conduct described in point 19 above, it acted in breach of the undertaking. Consequently, the Commission, acting within its discretion, was entitled to investigate that breach and to take the appropriate measures in relation to it.

(2) The anti-dumping and anti-subsidy regime applicable to the imports concerned

93. Notwithstanding the finding that there had been a breach of the undertaking, the imports concerned were released for free circulation at a time when the undertaking was no longer in force. As already observed, at the time of the release for free circulation of the imports concerned, the customs regime in force was the new scheme established by the expiry review anti-dumping and anti-subsidy regulations, as amended by the repeal regulation.

94. Against that background, the appellants argue that since the price indicated on the amended invoices was in line with the variable duty MIP under the new regime, they should have benefited from the new regime introduced by the repeal regulation.

95. However, the appellants’ argument is based on a misunderstanding and an incorrect portrayal of their legal situation at the time of the release for free circulation of the imports concerned.

96. Contrary to what the appellants imply, by adopting the regulation at issue, the Commission did not extend the application of the undertaking to the imports concerned beyond its scope ratione temporis.

97. The Commission investigated a breach of the undertaking that occurred when the undertaking was in force and applicable to the direct sales and the corresponding invoicing relating to the imports concerned. Having established that breach, the Commission adopted the appropriate measures, by means of the regulation at issue. The consequence of those measures was that, at the time of their release for free circulation, the imports concerned were not eligible to benefit from the derogating regime established by the repeal regulation. Consequently, the definitive duties imposed by the expiry review anti-dumping and anti-subsidy regulations applied to the imports concerned.

98. More specifically, as emerges from points 20 and 21 above, when, as a result of the investigation, it found a breach of the undertaking, the Commission adopted two measures in the regulation at issue.

99. First, the Commission invalidated the relevant invoices issued in breach of the undertaking. (63) Consequently, as stated in recital 61 of the regulation at issue, it was not possible validly to rely on those invoices in order to release the imports concerned for free circulation. (64) That is true even though the release in question occurred after the repeal of the undertaking. Since those invoices had been amended in breach of the undertaking while it was in force, they were invalid. It would be absurd to argue that invalid invoices subsequently become valid with retroactive effect owing to a change in the customs regime applicable to the imports at issue. Consequently, it was not possible to rely on those invoices in order to benefit from the derogating regime under the repeal regulation. (65)

100. Second, the Commission removed Zhejiang, as of 1 October 2017, from the list of legal entities to which the variable duty MIP as provided for under the repeal regulation was applicable. (66) Accordingly, because of the breach of the undertaking, Zhejiang could not benefit from the exemption provided for in the repeal regulation.

101. That consequence is consistent with the repeal regulation. Indeed, recital 54 of that regulation expressly states that:

‘… an exporting producer which is found to have breached the undertaking should not benefit from the variable duty MIP, even if these findings are made after the termination of the price undertaking. In those kind of cases, the variable duty MIP should no longer be applicable. The Commission should then remove the names of the respective company(ies) from the new Annex VI and the new Annex 5 by the same legal act in which the non-compliance is established.’ (67)

102. In that respect it is necessary to have in mind that both the undertaking scheme and the new variable duty MIP new regime are derogating schemes that are more favourable than the definitive anti-dumping and anti-subsidy duties imposed on the imports of the relevant products.

103. The undertaking regime was applicable to the eligible companies by reason of their cooperation in the initial investigation. (68) The repeal regulation explicitly stated that given that the new variable duty MIP replaced the undertaking, the new MIP was meant to be applied ‘to those companies that were still part of the price undertaking’. (69) The repeal regulation further explained that, in order to guarantee the effectiveness of the new regime, companies in respect of which the Commission had withdrawn its acceptance of the undertaking due to breaches of the undertaking should be excluded from application of the new MIP system. That was because the past conduct of the Chinese exporting producers in breach of the undertaking constituted a sufficient ground for the Commission to assume that there was a considerable risk that they would likewise not respect the new MIP. (70)

104. It was, then, their cooperation and compliance with the undertaking that allowed the entities listed in the new Annex VI introduced by the repeal regulation to benefit from the derogating regime provided for by that regulation. A breach of the undertaking would result in exclusion from that derogating regime.

105. The appellants refer to the first sentence of recital 54 of the repeal regulation, which states that ‘[t]he Commission continues to conduct investigations concerning the compliance with the price undertaking and may open new investigations for goods that were released for free circulation while the price undertaking was still in place.’ (71) However, that sentence merely confirms that the Commission may continue or initiate investigations in those circumstances. It does not exhaustively define the circumstances in which breaches of the undertaking may be investigated, nor does it exclude breaches committed while the undertaking was in force merely because the goods were released for free circulation after its repeal.

106. Admittedly, the repeal regulation did not establish transitional provisions that explicitly governed situations such as that at issue in the present case, in which part of the import transaction (the sale and the invoicing) occurred under the old undertaking regime and part of it (the release for free circulation) occurred under the new regime. However, the appellants could not legitimately expect that, due to the absence of transitional rules, obligations under the undertaking regime would cease to apply before that regime was repealed.

107. At the hearing, the parties discussed a letter dated 20 September 2017 sent by the Commission to the CCCME. That letter (72) clarified that the new regime would ‘apply automatically [to] goods that are declared for entry into free circulation into the EU after the entry into force … even if the goods are accompanied by an [u]ndertaking [i]nvoice and an [u]ndertaking [c]ertificate’. However, nothing in that communication is such as to justify Zhejiang’s conduct in breach of the undertaking, set out in point 19 above. That letter did not allow exporting producers unilaterally to amend undertaking invoices before the new regime entered into force in order to adapt them to the forthcoming new variable MIP regime. On the contrary, the letter shows that the amendment in breach of the undertaking was not necessary in order to benefit from the new derogating regime.

108. In conclusion, the fact that the imports concerned could not benefit from the variable duty MIP regime introduced by the repeal regulation was not due to an overextension of the scope ratione temporis of the undertaking. It was due to the fact that, at the time of the release for free circulation, the imports concerned did not, as a legal consequence of Zheijiang’s breach of the undertaking, meet the conditions of the new regime provided for by the repeal regulation.

(3) The alleged breach of the principles of proportionality and of legitimate expectations

109. The appellants further submit that the interpretation according to which the undertaking was applicable to the imports concerned resulted in a breach of the principle of proportionality. In fact, the goods to which the imports concerned relate were already on the high seas on 20 September 2017 and were always going to be released for free circulation after the repeal of the undertaking on 1 October 2017. The difference of 11 days had no effect on the objective of the undertaking, which is to protect the EU industry. At the same time, the regulation at issue causes the appellants to be in significant financial difficulties as the result merely of a purely administrative reinvoicing issue.

110. First, as the Commission points out, neither Zhejiang nor the appellants in their statement of intervention raised before the General Court any plea relating to breach of the principle of proportionality. Consequently, this is a matter of a new plea raised for the first time on appeal. According to settled case-law, the plea in question is therefore inadmissible. (73)

111. For the sake of completeness, I note that that new plea is also unfounded.

112. Indeed, although the Commission enjoys discretion in determining whether it is necessary to withdraw acceptance of the undertaking, that discretion must be exercised in the light of the principle of proportionality. (74)

113. However, as explained in the regulation at issue, (75) in return for the commitments under the undertaking offered, the exporting producer is entitled to enjoy the form of trade defence measures that is most favourable to it, because the measures in that form enable it, provided it complies with the undertaking, to avoid paying duties. When a producer acts in breach of the undertaking that it has itself offered, and therefore acts contrary to the relationship based on cooperation and trust on which the system is based, (76) it can no longer benefit from the favourable exemption regime, and duties under the normal rules apply to its imports. That outcome merely reflects the logical application of the system of undertakings under EU anti-dumping and anti-subsidy law. As has been mentioned in points 100 to 104 above, that logic also underpins the new favourable system introduced by the repeal regulation: a breach of the undertaking means that the favourable treatment is not justified. Accordingly, by enforcing that system the Commission did not take any measure which was inappropriate for attaining the objective pursued by the EU legislation or which went beyond what was necessary to achieve that objective.

114. As regards the financial difficulties invoked by the appellants, resulting from the allegedly disproportionate action by the Commission, I observe, first, that they are a new element of fact that was not submitted before the General Court, and, second, that they are in any event not relevant for assessing the legality of the regulation at issue, which concerned the actions of Zhejiang. The possibility that an importer may incur a customs debt at the time of acceptance of the declaration for release for free circulation in respect of transactions relating to goods on which an anti-dumping or anti-subsidy duty has been imposed and which are covered by an undertaking offered by the exporting producer can be regarded as part of the normal commercial risk which a diligent importer can be expected to take into account.

115. Lastly, the allegation that there has been a breach of the principle of legitimate expectations rests on the same reasoning as the claim of an error in law relating to the application ratione temporis of the undertaking; consequently, in view of the foregoing considerations it must be rejected.

116. In the light of all of the foregoing, I conclude that, by considering that the Commission did not make a manifest error of assessment or wrongly interpret the undertaking or distort the facts in finding, in the regulation at issue, that Zhejiang had acted in breach of the terms of the undertaking and, accordingly, that the invoices concerned were invalid, the General Court neither infringed EU law nor committed a manifest error of assessment.

117. Consequently, I propose that the Court should reject the first ground of appeal.

C. The second ground of appeal

1. Brief summary of the arguments of the parties

118. By their second ground of appeal, the appellants challenge the part of the judgment under appeal by which the General Court rejected Zhejiang’s plea relating to the Commission’s competence to adopt the regulation at issue. (77) In particular, the appellants dispute the finding that Article 8(9) of the basic anti-dumping regulation and Article 13(9) of the basic anti-subsidy regulation constitute a valid basis for the regulation at issue. (78) They base their arguments on the judgment in Seraphim.

119. The appellants submit that the General Court failed to consider a key factual difference between the present proceedings and the case which gave rise to the judgment in Seraphim. In contrast to the present case, in Seraphim the undertaking was in force when the imports at issue were released for free circulation and when the regulation invalidating the corresponding invoices was adopted.

120. In the present case, the undertaking was not in force at the material time. Thus, there is no legal link between, on the one hand, the imports concerned and the invalidated invoices and, on the other, Article 8(9) of the basic anti-dumping regulation and Article 13(9) of the basic anti-subsidy regulation. Consequently, those provisions did not apply ratione temporis to the facts at issue in the present case. Therefore, the General Court erred in law in finding that those provisions constitute a valid legal basis for the regulation at issue.

121. The Commission disputes the appellants’ arguments.

2. Analysis

122. The case which gave rise to the judgment in Seraphim arose in the context of the same regulatory framework relating to anti-dumping and anti-subsidy duties imposed on photovoltaic modules originating in the People’s Republic of China as the present case. It also concerned a Commission implementing regulation withdrawing acceptance of the undertaking and invalidating certain invoices. (79)

123. However, regardless of the Court’s judgment in Seraphim, the appellants’ arguments rest on the incorrect premiss that, since the imports concerned were released for free circulation after the entry into force of the repeal regulation, the imports concerned fell completely outside the scope ratione temporis of the undertaking. Consequently, according to the appellants, any breach of the undertaking would have no consequences for the application of the exemption regime established by the repeal regulation.

124. However, it emerges from the foregoing analysis relating to the first ground of appeal that that premiss is legally wrong.

125. Undertakings cover import operations in their entirety and apply to all stages of those operations. Accordingly, in the present case, as the undertaking was in force at the moment of the issuing and amendment of the invoices for the sales concerning the imports concerned, at that moment Zhejiang was bound by it. Therefore, by engaging in the conduct described in point 19 above, Zhejiang acted in breach of the undertaking. Consequently, the Commission, acting within its discretion, was entitled under Article 8(9) of the basic anti-dumping regulation and Article 13(9) of the basic anti-subsidy regulation to investigate that breach and to take the appropriate measures in relation to it.

126. There is nothing to indicate that the Commission’s powers to investigate breaches of the undertaking under those provisions would lapse once the undertaking was no longer in force. An interpretation of the provisions of the basic anti-dumping and anti-subsidy regulations that would prevent the Commission from investigating breaches of an undertaking – that occurred during the time when that undertaking was in force, – only because the undertaking is no longer in force, would substantially reduce not only the powers of investigation of the Commission relating to breaches of undertakings, but also the incentives for exporting producers to fulfil the undertakings they have entered into, thus undermining the effectiveness of the protection system which the basic regulations seek to establish in relation to undertakings. (80) Indeed, if such an interpretation were to be accepted, any breach of the undertaking that was concealed to such an extent that it would be discovered or investigated only at a later stage – that is to say, after the undertaking is no longer in force – would remain without consequences for imports falling within the temporal scope of the undertaking.

127. Such an approach would also be contrary to the repeal regulation, which, as already noted, in recital 54 explicitly mentions investigations of breaches of undertakings that the Commission would conduct or even open after the adoption of that regulation and therefore after the repeal of the undertaking.

128. On the basis of the foregoing, I propose that the Court should also reject the second ground of appeal and, consequently, should dismiss the appeal in its entirety.

III. Costs

129. Under Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to costs. Under Article 138(1) of the Rules of Procedure, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

130. Since the Commission has applied for costs and the appellants have been unsuccessful, the appellants must be ordered to bear their own costs and to pay those incurred by the Commission.

IV. Conclusion

131. In the light of the foregoing considerations, I suggest that the Court should:

– Dismiss the appeal;

– Order BT Solar d.o.o. and RC-Log d.o.o. to bear their own costs and to pay those incurred by the European Commission.

1 Original language: English.

2 On the date on which the anti-dumping and anti-subsidy duties were imposed and on the date on which the implementing regulation contested before the General Court was adopted, the adoption of anti-dumping measures by the European Union was regulated by Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21; ‘the basic anti-dumping regulation’), and the adoption of anti-subsidy measures by the European Union was regulated by Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (OJ 2016 L 176, p. 55; ‘the basic anti-subsidy regulation’).

3 Judgment of 20 November 2024, Zhejiang Beyondsun Green Energy Technology v Commission (T‑660/20, EU:T:2024:844).

4 Implementing Regulation of 24 August 2020 invalidating invoices issued by Zheijiang Trunsun Solar Co Ltd. in breach of the undertaking repealed by Implementing Regulation (EU) 2017/1570 (OJ 2020 L 276, p. 1).

5 For a more detailed description of the regulatory and factual background, I refer to paragraphs 2 to 22 of the judgment under appeal.

6 Implementing Regulation of 2 December 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China (OJ 2013 L 325, p. 1).

7 Implementing Regulation 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 (OJ 2013 L 325, p. 66).

8 Implementing Regulation of 1 March 2017 imposing a definitive anti-dumping 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 following an expiry review pursuant to Article 11(2) of Regulation 2016/1036 and terminating the partial interim review investigation pursuant to Article 11(3) of Regulation 2016/1036 (OJ 2017 L 56, p. 131).

9 Implementing Regulation of 1 March 2017 imposing definitive countervailing duties on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China following an expiry review pursuant to Article 18(2) of Regulation 2016/1037 and terminating the partial interim review investigation pursuant to Article 19(3) of Regulation 2016/1037 (OJ 2017 L 56, p. 1).

10 Commission Decision of 2 August 2013 accepting an undertaking offered in connection with the anti-dumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the People’s Republic of China (OJ 2013 L 209, p. 26).

11 Commission Implementing Decision of 4 December 2013 confirming the acceptance of an undertaking offered in connection with the anti-dumping and anti-subsidy proceedings concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China for the period of application of definitive measures (OJ 2013 L 325, p. 214). That decision was subsequently amended (see paragraph 10 of the judgment under appeal).

12 See in particular Clause 3.1 of the undertaking. The MIP was defined in Clause 3.4 of the undertaking. See also paragraph 32 of the judgment under appeal.

13 The specifications for both undertaking invoices and commercial invoices were also laid down in Annex VI to the undertaking. See also Clauses 4.1. and 4.9 of the undertaking.

14 Clause 4.6 and 4.8 of the undertaking.

15 Clause 5 of the undertaking.

16 See Annex II to the undertaking and paragraph 33 of the judgment under appeal.

17 Clause 7 of the undertaking.

18 Clause 7.1.6 of the undertaking.

19 Clause 7.1.8 of the undertaking.

20 Implementing Regulation (EU) 2017/1570 of 15 September 2017 amending Implementing Regulation 2017/366 and Implementing Regulation 2017/367 imposing definitive countervailing and anti-dumping duties on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China and repealing Implementing Decision 2013/707 (OJ 2017 L 238, p. 22).

21 The variable duty MIP was equal to the difference between the variable minimum import price and the net, free-at-Union-frontier price, before duty, if the latter was lower than the former.

22 See recital 24 of the regulation at issue.

23 See recital 24 of the regulation at issue.

24 See recital 25 of the regulation at issue.

25 Article 1(1) of the regulation at issue.

26 Article 2(1) of the regulation at issue.

27 See, to that effect, judgment of 24 September 2002, Falck and Acciaierie di Bolzano v Commission (C‑74/00 P and C‑75/00 P, ‘the judgment in Falck’, EU:C:2002:524, paragraph 55), and, more recently, judgment of 10 September 2026, ECCA v Commission (C‑773/23 P, EU:C:2026:730, paragraph 39).

28 Judgment of 10 September 2026, ECCA v Commission (C‑773/23 P, EU:C:2026:730, paragraph 41).

29 Judgment of 24 September 2002, Falck and Acciaierie di Bolzano v Commission (C‑74/00 P and C‑75/00 P, EU:C:2002:524, paragraphs 57 and 58). For a complete review of other relevant cases in the field of State aid, see footnote 31 to the Opinion of Advocate General Ćapeta in ECCA v Commission (C‑773/23 P, EU:C:2025:894).

30 See judgment of 2 October 2003, International Power and Others v NALOO (C‑172/01 P, C‑175/01 P, C‑176/01 P and C‑180/01 P, ‘the judgment in International Power’, EU:C:2003:534, paragraphs 52 and 53).

31 See judgment of 3 December 2020, Changmao Biochemical Engineering v Distillerie Bonollo and Others (C‑461/18 P, ‘the judgment in Changmao’, EU:C:2020:979, paragraph 126).

32 Opinion of Advocate General Kokott in Joined Cases Fresh Del Monte Produce v Commission and Commission v Fresh Del Monte Produce (C‑293/13 P and C‑294/13 P, EU:C:2014:2439, point 57).

33 In the judgment in Falck, the adverse consequences could have arisen from a possible action for repayment of the unlawful State aid. In the judgment in International Power, the negative consequences could have arisen from a fresh examination of the complaint concerning the anticompetitive behaviour. In the judgment in Changmao, the adverse consequence was the risk of actions for payment of much higher anti-dumping duties.

34 The judgment under appeal, paragraph 28.

35 The judgment under appeal, paragraph 36.

36 The judgment under appeal, paragraph 37.

37 The judgment under appeal, paragraph 37.

38 The judgment under appeal, paragraph 38.

39 Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1; ‘the Union Customs Code’). Regulation No 952/2013 has been repealed and replaced by Regulation (EU) 2026/2108 of the European Parliament and of the Council of 16 September 2026 establishing the Union Customs Code and the European Union Customs Authority (OJ L, 2026/2108).

40 See Article 8(1) of the basic anti-dumping regulation and Article 13(1)(b) of the basic anti-subsidy regulation. Article 13(1)(a) of the basic anti-subsidy regulation also provides for the possibility of ‘governmental undertakings’ by which the government of the country of origin or export agrees to eliminate or limit the subsidy, or to take other measures concerning its effects.

41 Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (OJ 1994 L 336, p. 103; ‘the WTO Anti-Dumping Agreement’). See specifically Article 8.

42 Agreement on Subsidies and Countervailing Measures (OJ 1994 L 336, p. 156; ‘the WTO Anti-Subsidy Agreement’) See specifically Article 18.

43 Article 8(2) of the basic anti-dumping regulation and Article 13(2) of the basic anti-subsidy regulation.

44 Article 8(1) of the basic anti-dumping regulation and Article 13(1)(b) of the basic anti-subsidy regulation.

45 Under the second subparagraph of Article 8(1) of the basic anti-dumping regulation and the second subparagraph of Article 13(1) of the basic anti-subsidy regulation, as long as the undertakings remain in force the duties (provisional or definitive) ‘shall not apply’ to the relevant imports. The exemption from anti-dumping duties does not stem from the Commission’s decision accepting the undertaking but from the provisions adopted in the regulation imposing the duties in order to implement the undertakings accepted by the Commission. See, to that effect, order of the General Court of 14 January 2015, SolarWorld and Others v Commission (T‑507/13, EU:T:2015:23, paragraph 48).

46 See, to that effect, judgment of 16 March 2023, Commission v Jiangsu Seraphim Solar System and Council v Jiangsu Seraphim Solar System and Commission (C‑439/20 P and C‑441/20 P, ‘the judgment in Seraphim’, EU:C:2023:211, paragraph 116 in fine), and point 88 of the Opinion of Advocate General Pitruzzella in Joined Cases Commission v Jiangsu Seraphim Solar System and Council v Jiangsu Seraphim Solar System (C‑439/20 P and C‑441/20 P, EU:C:2022:585), to which the Court explicitly refers.

47 Judgment of 22 November 2012, Usha Martin v Council and Commission (C‑552/10 P, EU:C:2012:736, paragraph 36). See also point 103 of the Opinion of Advocate General Pitruzzella in Joined Cases Commission v Jiangsu Seraphim Solar System and Council v Jiangsu Seraphim Solar System (C‑439/20 P and C‑441/20 P, EU:C:2022:585).

48 See judgment of 22 November 2012, Usha Martin v Council and Commission (C‑552/10 P, EU:C:2012:736, paragraphs 35 and 36; see also paragraph 24). See also point 103 of the Opinion of Advocate General Pitruzzella referred to in the preceding footnote.

49 See, inter alia, recital 21 of Council Implementing Regulation (EU) No 856/2010 of 27 September 2010 terminating the partial interim review of Regulation (EC) No 661/2008 imposing a definitive anti-dumping duty on imports of ammonium nitrate originating in Russia (OJ 2010 L 254, p. 5), and Council Regulation (EC) No 1659/2005 of 6 October 2005 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain magnesia bricks originating in the People’s Republic of China, (OJ 2005 L 267, p. 1).

50 Article 8(9) of the basic anti-dumping regulation and Article 13(9) of the basic anti-subsidy regulation. See judgment of 22 November 2012, Usha Martin v Council and Commission (C‑552/10 P, EU:C:2012:736, paragraph 32).

51 See, in that respect, judgment of 4 July 2002, Arne Mathisen v Council (T‑340/99, EU:T:2002:174, paragraph 118).

52 Judgment of 22 November 2012, Usha Martin v Council and Commission (C‑552/10 P, EU:C:2012:736, paragraph 32). See also point 107 of the Opinion of Advocate General Pitruzzella in Joined Cases Commission v Jiangsu Seraphim Solar System and Council v Jiangsu Seraphim Solar System (C‑439/20 P and C‑441/20 P, EU:C:2022:585).

53 See, to that effect, the judgment in Seraphim’, paragraph 116.

54 See for instance Clause 3.1 of the undertaking.

55 Should the goods, in a hypothetical scenario, fail to be released for free circulation – for whatever reason (such as destruction during transport to the European Union or any other unavoidable circumstance) – the anti-dumping and anti‑subsidy duties would not be levied on them. However, the fact that the goods are not released for free circulation does not imply that the direct sales of those goods to EU customers should be considered to be outside the scope of application of the undertaking.

56 See point 62 of the present Opinion.

57 When an EU importer or buyer enters into a binding contract to purchase goods at a dumped price below the minimum price provided for by an undertaking, that contract is likely to displace directly a sale that a domestic EU producer could have otherwise secured, potentially causing commercial injury (lost sales volume, lost revenue, lost profit margin). In any event, whether or not a breach of an undertaking has occurred depends on the terms of the undertaking itself (and of the acceptance decision). There is no need to prove actual injury.

58 See, in that regard, Commission staff working document – Accompanying the document ‘Report from the Commission to the European Parliament and the Council – 44th annual report from the Commission to [the] European Parliament and the Council on the EU’s anti-dumping, anti-subsidy and safeguard activities and the use of trade defence instruments by third countries targeting the EU in 2025’, SWD(2026) 277 final of 17 September 2026, Section 4.2, concerning the monitoring of price undertakings. See also Report from the Commission to the European Parliament and the Council – 44th annual report from the Commission to the European Parliament and the Council on the EU’s anti-dumping, anti-subsidy and safeguard activities and the use of trade defence instruments by third countries targeting the EU in 2025, COM(2026) 475 final of 17 September 2026, concerning the monitoring and reporting arrangements associated with price undertakings.

59 That provision corresponds to Article 87 of Regulation 2026/2108, referred to in footnote 39.

60 In conjunction with Article 77(1)(a) and Article 77(2) of the Union Customs Code according to which, respectively, a ‘customs debt on import shall be incurred through the placing of non-Union goods liable to import duty under … [the] release for free circulation …’ and a ‘customs debt shall be incurred at the time of acceptance of the customs declaration’.

61 As I had occasion to observe in greater detail recently, anti-dumping and anti-subsidy legislation, on the one hand, and customs legislation, on the other, albeit related, constitute distinct and autonomous sets of rules that pursue different objectives. See my Opinion in Jas Forwarding Worldwide (Belgium) and Others (C‑157/25, EU:C:2026:366, points 35 and 36 and the case-law cited).

62 The question was as follows: ‘Which time determines the applicable MIP? The time of the commercial invoice or the time of the custom clearance’. The answer was as follows: ‘The declaration date (that is the date of acceptance of the customs declaration) and this would be supported by Article 172(2) of the Union Customs Code’.

63 Article 1(1) of the regulation at issue.

64 Article 1(2) of the regulation at issue.

65 Under the new paragraph 2a, which the repeal regulation inserts into Article 1 of the expiry review anti-dumping and anti-subsidy regulations, ‘the application of the measures for the companies mentioned in Annex VI shall be conditional upon presentation to the customs authorities of the Member States of a valid commercial invoice indicating the elements set out in Annex V.’ Emphasis added.

66 That is to say, from the new Annex VI to the expiry review anti-dumping regulation and from the new Annex 5 to the expiry review anti-subsidy regulation, as amended by the Repeal regulation. See Article 2(1) of the regulation at issue.

67 See also recital 61 of the regulation at issue.

68 See recital 50 of the repeal regulation. See also recital 14 of that regulation.

69 Recital 50 of the repeal regulation.

70 Recital 51 of the repeal regulation.

71 Emphasis added.

72 At the hearing, the Commission explained that the letter in question was sent in the context of the communications and consultation with the CCCME under Clause 6 of the undertaking.

73 According to settled case-law, a plea raised for the first time in an appeal before the Court of Justice must be rejected as inadmissible. In an appeal, the Court’s jurisdiction is confined to examining the assessment by the General Court of the pleas argued before it. To allow a party to put forward in an appeal before the Court of Justice a plea in law which it has not raised before the General Court would amount to allowing that party to bring before the Court of Justice, whose jurisdiction in appeals is limited, a wider case than that heard by the General Court. See, among many, judgment of 2 July 2026, Google and Alphabet v Commission (C‑738/22 P, EU:C:2026:533, paragraph 178 and the case-law cited).

74 See point 64 above and the case-law cited.

75 See recitals 41 and 42.

76 See point 63 above and the case-law cited.

77 Paragraphs 45 to 51 of the judgment under appeal.

78 Paragraph 48 of the judgment under appeal.

79 Commission Implementing Regulation (EU) 2016/2146 of 7 December 2016 withdrawing the acceptance of the undertaking for two exporting producers under Implementing Decision 2013/707 confirming the acceptance of an undertaking offered in connection with the anti-dumping and anti-subsidy proceedings concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China for the period of application of definitive measures (OJ 2016 L 333, p. 4).

80 See the judgment in Seraphim, paragraph 135, and Opinion of Advocate General Pitruzzella in Joined Cases Commission v Jiangsu Seraphim Solar System and Council v Jiangsu Seraphim Solar System (C‑439/20 P and C‑441/20 P, EU:C:2022:585, point 104).

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