A group of exporting producers gave a mandate to the China Chamber of Commerce for Import and Export of Machinery and Electronic Products (‘CCCME’) to submit a price undertaking on their behalf to the Commission, which they did. It is clear from the terms of that price undertaking that it constitutes a bundle of individual price undertakings for each exporting producer, which is, for reasons of practicality of administration, coordinated by the CCCME.

1. (a)

   Ningbo Osda Solar Co. Ltd, covered by the TARIC additional code: B859 (‘Osda Solar’);

2. (b)

   Ningbo Qixin Solar Electrical Appliance Co. Ltd together with its related company in the Union, jointly covered by the TARIC additional code: B860 (‘Qixin Solar’);

3. (c)

   SHANDONG LINUO PHOTOVOLTAIC HI-TECH CO. LTD together with its related company in the Union, jointly covered by the TARIC additional code: B869 (‘Linuo’).

The exporting producers agreed, inter alia, not to sell the product covered to the first independent customer in the Union below a certain minimum import price (‘the MIP’) within the associated annual level of imports to the Union (‘annual level’) laid down in the undertaking.

The exporting producers also agreed to sell the product covered only by means of direct sales. For the purpose of the undertaking, a direct sale is defined as a sale either to the first independent customer in the Union or via a related party in the Union listed in the undertaking.

The undertaking sets out, in a non-exhaustive list, the breaches of the undertaking. That list includes, in particular, issuing a commercial invoice (‘undertaking invoice’ as defined in the Implementing Regulations referred to in recital 4) or resale invoice for which the underlying financial transaction (e.g. the amount of money actually received from the buyer after any adjustments for credit/debit notes and the like) is not in conformity with the face value of the commercial invoice.

The list of breaches also includes indirect sales to the Union by companies other than listed in the undertaking and taking part in a trading system leading to a risk of circumvention.

The undertaking also obliges the exporting producers to provide the Commission on a quarterly basis with detailed information on all their export sales to and resales in the Union (‘the quarterly reports’). This implies that the data submitted in these quarterly reports must be complete and correct and the reported transactions fully comply with the terms of the undertaking.

The exporting producer is liable for the breach of any of its related parties, whether or not listed in the undertaking.

While monitoring compliance with the undertaking, the Commission verified information submitted by Osda Solar, Qixin Solar, and Linuo that was relevant to the undertaking. The Commission also received evidence from customs authorities of one Member State on the basis of Article 8(9) of the basic anti-dumping Regulation and Article 13(9) and of the basic anti-subsidy Regulation.

The findings set out in recitals 26 to 34 address the problems identified for Osda Solar, Qixin Solar and Linuo which oblige the Commission to withdraw the acceptance of the undertaking for these exporting producers.

In this context, the Commission recalls that pursuant to Article 3(1)(b) read in conjunction with Annex III, No 7 of Implementing Regulation (EU) No 1238/2013 and to Article 2(1)(b) read in conjunction with Annex 2, No 7 of Implementing Regulation (EU) No 1239/2013, imports are only exempted from duties if the invoice indicates the price and possible rebates. Where those conditions are not complied with, duties are due, even where the commercial invoice accompanying the goods has not been invalidated by the Commission.

The undertaking stipulates that a breach by an individual exporting producer does not automatically lead to the withdrawal of the acceptance of the undertaking for all exporting producers. In such a case, the Commission shall assess the impact of that particular breach on the practicability of the undertaking with the effect for all exporting producers and the CCCME.

The Commission has accordingly assessed the impact of the breaches by Osda Solar, Qixin Solar, and Linuo on the practicability of the undertaking with the effect for all exporting producers and the CCCME.

Although the breaches by the three exporting producers show a similar pattern, the Commission considers that the responsibility for the breaches lies with the exporting producers in question; the monitoring has so far not revealed systematic breaches of this pattern by a major number of exporting producers or the CCCME. At present, the Commission considers that the overall functioning of the undertaking is not affected and that there are no grounds for withdrawal of the acceptance of the undertaking for all exporting producers and the CCCME.

However, by letter of 11 July 2016 the Commission informed the CCCME about the above breaches by the three exporting producers showing a similar pattern and stated at the same time that should breaches of a similar pattern persist in the future, the Commission might re-assess the overall practicability of the undertaking.

Interested parties were granted the opportunity to be heard and to comment pursuant to Article 8(9) of the basic anti-dumping Regulation and Article 13(9) of the basic anti-subsidy Regulation.

Two exporting producers submitted limited comments after the disclosure on the sales channels or on the compliance with the MIP. However, the comments were of a confidential nature and despite the Commission's request no non-confidential summaries were provided within the deadline set for that purpose. Under Article 19(3) of the basic anti-dumping Regulation and Article 29(3) of the basic anti-subsidy Regulation, these comments may thus be disregarded. In any event, the comments received were not such as to alter the Commission's assessment regarding the breaches referred to in recitals 26 to 32 and the invalidation of the undertaking invoices referred to in recital 33.

Therefore, in accordance with Article 8(9) of the basic anti-dumping Regulation, Article 13(9) of the basic anti-subsidy Regulation and also in accordance with the terms of the undertaking, the Commission has concluded that the acceptance of the undertaking for Osda Solar, Qixin Solar and Linuo together with their related companies in the Union shall be withdrawn.

Accordingly, pursuant to Article 8(9) of the basic anti-dumping Regulation and Article 13(9) of the basic anti-subsidy Regulation, the definitive anti-dumping duty imposed by Article 1 of Implementing Regulation (EU) No 1238/2013 and the definitive countervailing duty imposed by Article 1 of Implementing Regulation (EU) No 1239/2013 automatically apply to imports originating in or consigned from the PRC of the product concerned and produced by Osda Solar (TARIC additional code B859), Qixin Solar (TARIC additional code B860) and Linuo (TARIC additional code B869) as of the day of entry into force of this Regulation.

For information purposes the table in the Annex to this Regulation lists the exporting producers for whom the acceptance of the undertaking by Implementing Decision 2013/707/EU is not affected,