23.12.2019

Official Journal of the European Union

C 432/66

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(Case T-733/19)

(2019/C 432/77)

Language of the case: English

Parties

Applicants: Zhejiang Sunflower Light Energy Science & Technology LTD (Shaoxing, Chine), Sunowe Solar GmbH (Nürnberg, Germany) (represented by: Y. Melin, lawyer, and D. Arnold, Solicitor)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

—annul Commission Implementing Regulation (EU) 2019/1329 of 6 August 2019 invalidating invoices issued by Zhejiang Sunflower Light Energy Science & Technology Ltd in breach of the undertaking repealed by Implementing Regulation (EU) 2017/1570;

—order the Commission, and any intervener who may be allowed to support the defendant in the course of the proceedings to bear the costs.

Pleas in law and main arguments

In support of the action, the applicant relies on three pleas in law.

1.First plea in law, alleging that the defendant has acted illegally by declaring the relevant invoices invalid because the powers it relied upon to do so have either expired or been revoked, given that implementing Regulations (EU) No 1238/2013 and No 1239/2013 expired on 7 December 2015. Similarly, Implementing Regulations (EU) 2017/367 and 2017/366 expired on 3 September 2018. In any case, the applicant supports that Articles 2 and 3 of Implementing Regulation (EU) 2017/367 and Articles 2 and 3 of Implementing Regulation (EU) 2017/366 had already been repealed by Articles 1(4) and 3(3) of Commission Implementing Regulation (EU) 2017/1570.

2.Second plea in law, alleging that, the defendant anyway breached Articles 8(1), (9) & 10 and Article 10(5) of 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, and Articles 13(1), (9) & 10 and Article 16(5) of 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, when it invalidated undertaking invoices and then directed customs to collect duties, as if no valid undertaking invoices had been issued and communicated to customs at the time the goods were declared for release in free circulation. The applicant therefore raises a plea of illegality against Article 3(2) of Council Implementing Regulation (EU) No 1238/2013 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, Article 2(2) of Commission Implementing Regulation (EU) 2017/367 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, Article 2(2) of 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, and Article 2(2) of Commission Implementing Regulation (EU) 2017/366 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, which give the defendant the power to declare undertaking invoices invalid and order customs to collect duties on past imports released for free circulation.

3.Third plea in law, alleging that if the Court were to consider that the powers the defendant used have not expired and entitled the defendant to impose duties retroactively, those duties cannot be levied upon solar panels which were sold to a related party before 30 September 2014 and used in a solar farm owned by that party, or never resold to an independent customer and kept in stock.

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