OPINION OF ADVOCATE GENERAL
BIONDI
delivered on 5 November 2026 (1)
Case C‑59/25 P
Zhejiang Sunflower Great Health Co., Ltd., formerly Zhejiang Sunflower Light Energy Science & Technology Ltd,
Sunowe Solar GmbH
v
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 – Invalidation of invoices – Infringement detected after the repeal of the undertaking – Fraudulent scheme aimed at circumventing the undertaking – Principle fraus omnia corrumpit )
I. Introduction
1. The present case will allow the Court of Justice to provide further clarifications on the exercise by the European Commission of its powers, under EU anti-dumping and anti-subsidy law, (2) to investigate breaches of price undertakings. (3)
2. The case concerns an appeal lodged by two companies – Zhejiang Sunflower Great Health Co., Ltd. (‘Zheijiang’) (4) and Sunowe Solar GmbH, respectively, an exporting producer and an importer into the European Union of crystalline silicon photovoltaic modules (‘the appellants’) – against a judgment of the General Court of the European Union (5) (‘the judgment under appeal’). By that judgment, the General Court dismissed the appellants’ action seeking annulment of Implementing Regulation 2019/1329 (6) (‘the regulation at issue’). By that implementing regulation, the Commission invalidated invoices issued by Zhejiang Sunflower Light Energy Science & Technology Ltd 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’).
3. In essence, (7) in 2013, the European Union imposed anti-dumping and anti-subsidy duties on the abovementioned imports under Implementing Regulation (EU) No 1238/2013 (8) and Implementing Regulation (EU) No 1239/2013, (9) respectively.
4. The same year, 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, among others, Zhejiang, in order to benefit from the derogating regime for the anti-dumping and countervailing duties. The Commission accepted the undertaking by Decision 2013/423/EU (10) and subsequently confirmed that acceptance by Implementing Decision 2013/707/EU. (11)
5. In 2017, following the expiry of Implementing Regulations No 1238/2013 and No 1239/2013, the anti-dumping and anti-subsidies duties were extended under Implementing Regulation (EU) 2017/367 (12) and Implementing Regulation (EU) 2017/366, (13) respectively. Those two regulations imposed the anti-dumping and anti-subsidy duties in force at the material time for the present proceedings.
6. On 15 September 2017, the Commission repealed the undertaking by Implementing Regulation (EU) 2017/1570 (14) (‘the repeal regulation’), replacing it with an obligation to pay a variable duty minimum import price. (15) That regulation entered into force on 1 October 2017.
7. After receiving evidence submitted by the customs authorities of one Member State regarding non-compliance by Zhejiang with the undertaking, the Commission initiated an investigation. The Commission found that Zhejiang infringed several commitments made in the undertaking and committed fraud, including ‘fraudulent undervaluation’. (16) The Commission concluded ‘in accordance with Article 8(9) of the basic anti-dumping [r]egulation, Article 13(9) of the basic anti-subsidy [r]egulation and in accordance with the terms of the undertaking, … that Zhejiang breached the undertaking while it was still in force.’ (17)
8. Consequently, in Article 1 of the regulation at issue, the Commission, first, declared invalid the undertaking invoices relating to the relevant sales (paragraph 1) and, second, declared that the ‘anti-dumping and countervailing duties due at the time of acceptance of the customs declaration for release into free circulation under Article 3(2)(b) of Implementing Regulation … No 1238/2013, Article 2(2)(b) of Implementing Regulation … 2017/367, Article 2(2)(b) of Implementing Regulation … No 1239/2013 and Article 2(2)(b) of Implementing Regulation … 2017/366 shall be collected’ (paragraph 2).
9. The appellants brought an action before the General Court seeking annulment of the regulation at issue.
10. By the judgment under appeal, the General Court dismissed the action in its entirety.
II. The appeal
11. By their appeal, the appellants ask the Court of Justice to set aside the judgment under appeal, annul the regulation at issue and order the Commission to pay the costs of the first-instance and appeal proceedings; or, in the alternative, to refer the case back to the General Court and reserve the costs for final judgment by the General Court.
12. The Commission asks the Court of Justice to dismiss the appeal as inadmissible or, in the alternative, as unfounded, and order the appellants to pay the costs.
13. In support of their appeal, the appellants rely on six grounds of appeal.
14. In accordance with the Court’s request, I shall focus my analysis on the first three grounds of appeal.
A. The first ground of appeal
1. Brief summary of the arguments of the parties
15. By their first ground of appeal the appellants submit that, in paragraphs 25 to 27 of the judgment under appeal, the General Court failed to take into account the principle of proportionality in finding that the Commission could legitimately invalidate the invoices at issue and order the collection of anti-dumping and countervailing duties after the implementing regulations which imposed those anti-dumping and countervailing duties – that is, Implementing Regulations No 1238/2013, No 1239/2013, 2017/367 and 2017/366 – and which constituted the basis for the undertaking had expired or had been repealed. According to the appellants, in the light of the principle of proportionality, the General Court was required to take into account, in its assessment of the first plea, whether the regulation at issue exceeded what is necessary to achieve the objectives of the basic regulations.
16. The Commission contests the appellants’ arguments.
2. Analysis
17. According to Article 170(1) of the Rules of Procedure of the Court of Justice, the subject matter of the proceedings before the General Court may not be changed in the appeal. Thus, the jurisdiction of the Court of Justice in an appeal is limited to review of the findings of law on the pleas and arguments debated before the General Court. A party cannot, therefore, put forward for the first time before the Court of Justice a plea in law which it has not raised before the General Court since that would allow that party to bring before the Court of Justice, whose jurisdiction in appeal proceedings is limited, a wider case than that heard by the General Court. (18)
18. In the present case, paragraphs 25 to 27 of the judgment under appeal form part of the General Court’s response to the appellants’ first plea developed at first instance. In that plea, the appellants submitted that the Commission’s powers to invalidate the invoices at issue and order the collection of the duties had expired or had been revoked at the time of adoption of the regulation at issue and that, therefore, the Commission acted without a legal basis.
19. Before the General Court, the appellants did not argue, in the context of their first plea, that the invalidation of the invoices at issue and the subsequent order to collect the duties were contrary to the principle of proportionality. The proportionality of the measure adopted by the Commission therefore fell outside the scope of the dispute before the General Court and was not among the issues debated by the parties.
20. Consequently, the plea relating to the breach of the principle of proportionality is a plea in law put forward for the first time before the Court of Justice in the appeal.
21. It is true that, according to settled case-law, an appellant is entitled to lodge an appeal relying on grounds which arise from the judgment under appeal itself and seek to criticise, in law, its correctness. (19)
22. However, in the present instance, the plea relating to the breach of the principle of proportionality is not a ground that arises from the judgment under appeal. In essence, by their first ground of appeal, the appellants challenge the proportionality of the Commission’s decision, in the regulation at issue, to invalidate all the disputed invoices and order the collection of the corresponding duties.
23. Moreover, an alleged breach of the principle of proportionality is not a matter of public policy which the General Court was required to raise of its own motion. (20) Rather, it concerns the substantive legality of the regulation at issue and should therefore have been raised by the appellants before the General Court in order to form part of the dispute before it. (21)
24. In conclusion, I propose that the Court of Justice qualify the first ground of appeal as a plea in law put forward for the first time before it and, consequently, reject that ground of appeal as inadmissible.
B. The second ground of appeal
1. Brief summary of the arguments of the parties
25. By their second ground of appeal, the appellants submit that, in the judgment under appeal, the General Court misinterpreted Article 8(9) of the basic anti-dumping regulation and Article 13(9) of the basic anti-subsidy regulation, and misapplied the findings of the 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). The appellants contest the finding that the Commission could legitimately order the collection of anti-dumping and countervailing duties after the expiry of the implementing regulations on which the undertaking was based and after the latter was repealed.
26. The appellants submit that the judgment in Seraphim did not address the issue of whether undertaking invoices could be invalidated after the undertaking had been repealed and the underlying anti-dumping and anti-subsidy measures had expired. According to the appellants, in the present case, contrary to the situation in Seraphim, the Commission enacted the regulation at issue when the undertaking was no longer in force and the underlying anti-dumping and countervailing measures had already expired. Therefore, in the present case, since the undertaking was no longer in force, there was no undertaking for the Commission to withdraw. Moreover, since the underlying anti-dumping and countervailing measures had expired at the time the regulation at issue was adopted, no anti-dumping or countervailing duties were suspended on account of the undertaking.
27. The Commission submits that the second ground of appeal should be held to be inadmissible and, in the alternative, unfounded.
2. Analysis
28. The Commission considers that the appellants’ argument relating to the judgment in Seraphim is a new argument raised for the first time in the appeal. Consequently, according to the case law mentioned in point 17 and in footnote 18 above, the second ground of appeal should be declared inadmissible.
29. In that regard, I shall observe, first, that the second ground of appeal is not limited solely to the argument relating to the misapplication of the judgment in Seraphim. That ground of appeal also raises the question whether the General Court misinterpreted Article 8(9) of the basic anti-dumping regulation and Article 13(9) of the basic anti-subsidy regulation. Therefore, even if the reference to that judgement were a new inadmissible argument, the second ground of appeal would not be inadmissible in its entirety. Second, in the judgment under appeal, (22) the General Court based its reasoning explicitly on the judgment in Seraphim. Therefore, by their argument relating to that judgment, the appellants merely dispute a part of the General Court’s reasoning and do not expand the scope of the case heard by that court. Consequently (unlike the plea submitted in the first ground of appeal), the argument based on the judgment in Seraphim must be regarded as arising from the judgment under appeal itself within the meaning of the case-law mentioned in point 21 above. Third, the Court delivered the judgment in Seraphim in 2023, namely more than three years after the introduction of the appellants’ action before the General Court. Therefore, the appellants cannot be criticised for failing to rely on that judgment in their application for annulment at first instance.
30. Accordingly, in my view, the second ground of appeal is admissible.
31. As to the merits, however, I consider that the second ground of appeal is unfounded.
32. 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 in the present case. That case also concerned, like here, an implementing regulation by which the Commission withdrew acceptance of the undertaking and invalidated certain invoices. (23)
33. However, the two cases undoubtedly (24) differ in the factual aspect identified by the appellants. Indeed, in the judgment in Seraphim, both the undertaking and the anti-dumping and anti-subsidy measures were still in force at the time of the adoption of the implementing regulation that withdrew the undertaking and invalidated the invoices. In the present case, however, the regulation at issue was adopted after the undertaking was repealed and the anti-dumping and anti-subsidy measures had ceased to apply.
34. Nevertheless, that factual difference does not in itself establish that the General Court misinterpreted Article 8(9) of the basic anti-dumping regulation and Article 13(9) of the basic anti-subsidy regulation, or that it misapplied the judgment in Seraphim.
35. In the present case, it is uncontested that the acts constituting breaches of the obligations under the undertaking were committed at a time when the undertaking was in force.
36. Whenever there is a breach of an undertaking, the Commission, within the margin of discretion it enjoys, (25) is 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 withdraw the acceptance of the undertaking. In such a case, as a legal consequence of that breach and under those provisions, the anti-dumping and countervailing duties are to apply automatically to the import transactions concerned by the breach, (26) provided that at the time of the release for free circulation of those imports, (27) both the undertaking (28) and the underlying anti-dumping and anti-subsidy measures are in force.
37. By contrast, the fact that, at the time of the initiation or conclusion of the investigation or at the time of the adoption of the implementing regulation invalidating the invoices, the undertaking is no longer in force is not relevant as regards the powers of the Commission to investigate past breaches of the undertaking, that is to say, breaches that took place when the undertaking was still in force. The fact that the undertaking is no longer in force may be relevant for the legal consequences of such a breach, (29) but does not affect the powers of the Commission to investigate it.
38. There is nothing to indicate that the Commission’s powers under Article 8(9) of the basic anti-dumping regulation and Article 13(9) of the basic anti-subsidy regulation to investigate breaches of an undertaking, which occurred while that undertaking was in force, would lapse once the undertaking was no longer in force; the Commission is entitled to investigate past breaches of the undertaking.
39. To interpret the relevant provisions of the basic anti-dumping and anti-subsidy regulations otherwise, namely as preventing the Commission from investigating breaches of undertakings merely because the undertaking at issue is no longer in force when the institution initiates or concludes its investigation, would substantially curtail the Commission’s investigative powers in respect of such breaches.
40. In order to ensure the effectiveness of undertakings, the Commission must be in a position to investigate any breach that has occurred while the undertaking at issue was in force and was binding on the exporting producers that entered into it. In that regard, the Commission must also be able to adopt appropriate measures (such as withdrawing the undertaking and invalidating the invoices) concerning the import transactions affected to avoid injurious effects on the EU industry.
41. An interpretation of Article 8(9) of the basic anti-dumping regulation and Article 13(9) of the basic anti-subsidy regulation, such as that set out in point 39 above, would also weaken the incentive for exporting producers to comply with their undertakings, thereby undermining the effectiveness of the system of protection established by those basic regulations. (30) 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.
42. Such an interpretation would also be difficult to reconcile with the fundamental objective of the provisions governing undertakings under EU anti-dumping and anti-subsidy law, which, as the Court of Justice has held, is to eliminate the injurious effects of dumping and subsidisation on the EU industry.(31) Indeed, it would allow goods subject to anti-dumping or countervailing duties to be imported into the European Union despite having been sold on terms that infringe the undertaking.
43. As regards the present case, such an approach would also be contrary to the repeal regulation, which explicitly refers, in recital 54 thereof, to investigations of breaches of the undertaking that the Commission conducts or even opens after the adoption of that regulation and, therefore, after the repeal of the undertaking.
44. For the same reasons as those set out in points 38 to 42 above, the fact that the underlying anti-dumping and anti-subsidy measures have in the meantime expired also does not prevent the Commission from investigating breaches of an undertaking that occurred while that undertaking was in force. Of course, in that case the automatic application of the provisional or definitive anti-dumping and countervailing duties provided by those measures and suspended as long as the undertaking was in force (32) can be imposed only on imports released for free circulation (33) during the temporal scope of application of those measures and not on imports released for free circulation after their expiry.
45. It follows from the foregoing considerations that, in my view, the second ground of appeal should be rejected as unfounded.
C. The third ground of appeal
46. By their third ground of appeal, the appellants challenge paragraphs 42 to 51 of the judgment under appeal. They submit that the General Court distorted the evidence in finding that two companies (A and B), established in Italy, were related to the appellants and that, therefore, clause 5.18 of the undertaking was applicable to sales made to those companies.
1. Background to the dispute
47. Under clause 5.18 of the undertaking, the appellants had to ensure that all of their ‘related’ companies whose business activity was other than the production or sale of crystalline silicon photovoltaic modules and their key components would not enter into business related to those goods.
48. During the Commission’s investigation, the appellants claimed that the Commission should not invalidate certain invoices relating to solar panels used in a solar park built by a related company (that is to say, A), since those solar panels were not sold to a final independent customer. (34)
49. Responding to that claim in the regulation at issue, the Commission, first, referred to a communication to the CCCME of 30 September 2014, whereby the Commission informed the CCCME and the Chinese exporting producers that the export of solar panels for the building of solar parks (captive sales) constituted a breach of the undertaking. Second, the Commission stated that the evidence it had received from the customs authority of the Member State concerned indicated that the related companies involved in the construction of the solar park had received kickback payments within an unlawful trading scheme set up by Zhejiang involving kickback payments and the fraudulent undervaluation of services related, in particular, to solar parks. (35)
50. The appellants challenged that part of the regulation at issue before the General Court. In their application at first instance, they essentially claimed that duties could not be levied upon solar panels sold to a related importing party and used in a solar farm owned by that party, at least before 30 September 2014, which was the date of the communication to the CCCME. (36)
51. They argued that nothing in the undertaking regulated the price applicable to imports of solar modules used in a solar park owned by a related company. Moreover, the communication to the CCCME was neither a regulation, a decision or even a formal undertaking and could not affect sales of solar panels to related parties which were used by solar parks. In any case, such a communication could only affect invoices issued after the date of the communication. (37)
52. During the proceedings before it, the General Court, by way of measures of organisation of procedure, addressed questions to the appellants, to which they replied in writing.
53. In the judgment under appeal, the General Court considered that, in their reply to those questions, the appellants claimed, in essence, that A and B were not companies related to them and were not included in the undertaking. (38)
54. In paragraphs 43 to 50 of the judgment under appeal, the General Court analysed that claim in the light of the evidence provided by the appellants. In paragraph 51 of that judgment, the General Court concluded as follows:
‘In those circumstances, since clause 5.18 of the undertaking applies to the situation of A and B, which are regarded as being related to the [appellants] …, it is also not possible to take the view, as the [appellants] suggest, that it is only the invoices relating to the transactions after 30 September 2014 that could be invalidated on that basis. In addition, as is apparent from the witness statements in the context of a German criminal investigation …, and as described in recitals 25, 43 and 48 of the contested regulation, a fraudulent scheme involving both A and B was envisaged, which, in the context of all of the elements described in that regard in the contested regulation, constituted an indication that the Commission could reasonably take into account. Consequently, the [appellants’] claims relating to the sales to A and B must be rejected as unfounded.’
2. Brief summary of the arguments of the parties
55. The appellants submit that the General Court distorted the evidence in ruling that clause 5.18 of the undertaking was applicable to the sales of solar panels to A and B.
56. As regards A, the appellants submit that the General Court ignored the fact that – as they submitted in their reply to the questions asked by way of measures of organisation of procedure – the group to which they belong only acquired shares in A after that company was unable to pay for the solar module after its delivery. The invoices relating to the sales that occurred before that acquisition did not, therefore, concern sales between related parties. Consequently, in reaching the conclusion that the appellants were related to A for all invalidated invoices for the purposes of clause 5.18 of the undertaking, the General Court ignored the fact that, for those sales, the appellants and A were not related.
57. As regards B, the appellants, in the abovementioned reply, submitted that it was an independent company with no corporate relationship to them. The General Court erroneously stated that that information contradicted the information set out in the application, according to which B was an ‘affiliate’ of the project developer.
58. The Commission submits that the third ground of appeal is inadmissible, ineffective and in any case unfounded.
3. Analysis
(a) Admissibility
59. The Commission submits that the third ground of appeal is inadmissible for two reasons.
60. First, the appellants have raised for the first time in the appeal the plea that it is only following the acquisition of the shares in A that they have become related to A. Consequently, according to the case-law referred to in point 17 and in footnote 18 above, this new plea should be declared inadmissible.
61. In that regard, I observe that, as is apparent from paragraphs 30 to 33 of the judgment under appeal, it is true that, in their application at first instance, the appellants did not raise any plea based on the fact that they had become related to A only following their group’s acquisition of shares in that company by reason of A’s inability to pay for the delivery of the solar modules. In their original (third) ground for annulment at first instance, the appellants merely maintained that the undertaking was not applicable to imports of solar modules used in a solar park owned by a company (A) related to the appellants.
62. However, it is also apparent from paragraph 42 of the judgment under appeal that, following the appellants’ reply to the written questions put by the General Court by way of measures of organisation of procedure, that court interpreted that reply as claiming, in essence, that A and B were companies which were ‘not related’ to the appellants and were not included in the undertaking.
63. By their third ground of appeal, the appellants are claiming that the General Court distorted the evidence resulting from that reply by concluding, in paragraphs 43 to 51 of the judgment under appeal, that they were related to the appellants. Accordingly, the appellants dispute an analysis carried out in that judgment, submitting that it is based on a distortion of the evidence. This not a new plea in law that expands the scope of the case heard by the General Court in the sense of the case law referred to in point 17 and in footnote 18 above. Rather, the third ground of appeal arises directly from the judgment under appeal in the sense of the case-law referred to in point 21 above. Consequently, it is admissible.
64. Second, the Commission submits that the third ground of appeal is inadmissible because it concerns a purely factual question.
65. In that regard, it is correct that, in accordance with Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal lies on points of law only and therefore the appraisal of the facts and the assessment of the evidence carried out by the General Court does not, save where they have been distorted, constitute a point of law which is subject, as such, to review by the Court of Justice on appeal. (39)
66. However, in the present case, the appellants, by their third ground of appeal, do not merely dispute the assessment of the evidence carried out by the General Court, but maintain that it distorted the evidence that they had submitted in their reply to the written questions. Such a ground of appeal is admissible in an appeal.
(b) Substance
67. The Commission submits that the third ground of appeal is ineffective. It maintains that, in the regulation at issue, the conclusion on the breach of the undertaking relating to the transactions between the appellants and A and B was founded on two separate and independent findings, namely, first, the relatedness between the appellants and A and B and, second, the participation of A and B in the fraudulent scheme set up by Zhejiang to circumvent the undertaking. According to the Commission, since the General Court confirmed both findings, in order for the appeal to succeed they would both need to be overturned. However, the appellants have not challenged the finding that A and B participated in the fraudulent scheme. Consequently, even if the third ground of appeal were upheld, that would not put into question the legality of the regulation at issue.
68. I observe that it is clear from the regulation at issue that the Commission received evidence from the customs authority of the Member State concerned that Zhejiang had set up a fraudulent trading scheme with its related importer in the European Union to systematically sell solar panels in breach of the undertaking. That trading scheme included kickback payments and the fraudulent undervaluation of services ‑‑ in particular related to solar parks – such as engineering, procurement and constructions services. (40) The goal of the fraudulent scheme was to circumvent the undertaking; the breach had a systemic nature and concerned potentially all imports by the related importer, (41) including the imports concerning A and B. (42)
69. As the Commission points out, the appellants have not contested before the General Court the findings relating to the fraudulent trading scheme set up by Zhejiang and to the participation of A and B in that scheme.
70. In paragraph 51 of the judgment under appeal – recalled in point 54 above – the General Court founded its conclusion – whereby it dismissed the appellants’ claim concerning the sales to A and B – on both of the aforementioned reasons: first, by referring to the fact that A and B needed to be regarded as being ‘related’ to the appellants, and, second, ‘in addition’, by referring to the participation of A and B in the fraudulent scheme aimed at circumventing the undertaking. The use of the term ‘in addition’ shows that, in its reasoning, the General Court relied on two distinct grounds.
71. However, the second reason, namely the participation in the fraudulent scheme, is sufficient, in itself, to establish a breach of the undertaking. Since the appellants have not challenged that independent ground, even if the Court of Justice were to uphold the third ground of appeal and find that the General Court distorted the evidence in concluding that A and B were related to the appellants, that finding would have no bearing on the legality of the regulation at issue. The third ground of appeal should therefore be rejected as ineffective.
72. In that regard, I would add that the proven finding of the existence of a systemic fraudulent scheme, such as the one at issue in the present case, aimed at circumventing the undertaking, entitles the Commission – under Article 8(9) of the basic anti-dumping regulation and Article 13(9) of the basic anti-subsidy regulation – to invalidate all invoices issued under that scheme throughout the period it was active and to order the collection of anti-dumping and anti-subsidy duties on all affected imports.
73. Such an approach is consistent both with the powers conferred on the Commission by those provisions as explained in point 40 above and with the fundamental objective of the rules governing undertakings under the basic anti-dumping and anti-subsidies regulations recalled in point 42 above.
74. There is, moreover, a broader consideration which supports that interpretation. I am generally reluctant to invoke yet another general principle of EU law, particularly one expressed in a Latin maxim. There is perhaps no shortage of either. In the present case, however, the principle fraus omnia corrumpit seems particularly relevant.
75. The underlying proposition is a simple one: a person should not be allowed to benefit from his or her own fraudulent conduct. That proposition finds expression in different legal traditions and has also been recognised in the case-law of the Court of Justice. (43) It does not follow, of course, that every instance of fraud necessarily invalidates every transaction with which it may be connected. The legal consequences must still be determined by reference to the applicable rules.
76. In the present case, those rules establish a favourable regime under which exporting producers may benefit from an exemption from anti-dumping or countervailing duties, provided that they comply with the terms of their undertakings. Where an exporting producer has engaged in a fraudulent scheme involving invoices issued under that regime, it can hardly insist on retaining the advantages which that very scheme was designed to secure. The invalidation of the invoices concerned, and the consequent collection of the duties, are therefore consistent not only with the provisions of the basic regulations but also with the principle that fraud should not confer an advantage on its author.
77. On the basis of the foregoing, I propose that the Court should also reject the third ground of appeal as unfounded.
III. Conclusion
78. On the basis of all the foregoing considerations, I propose that the Court declares inadmissible the first ground of the appellants’ appeal and rejects the second and third grounds of that appeal as unfounded.
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’) (together, ‘the basic regulations’).
3 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 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. On the topic, see my Opinion in the parallel case BT Solar and RC-Log v Commission (C‑64/25 P, EU:C:2026:907, in particular points 1, 2 and 58 to 67).
4 Formerly Zhejiang Sunflower Light Energy Science & Technology Ltd.
5 Judgment of 20 November 2024, Zhejiang Sunflower Light Energy Science & Technology and Sunowe Solar v Commission (T‑733/19, EU:T:2024:842).
6 Commission Implementing Regulation 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 (OJ 2019 L 207, p. 12).
7 For a more detailed description of the regulatory and factual background, I refer to paragraphs 2 to 18 of the judgment under appeal.
8 Council Implementing Regulation 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).
9 Council 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).
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 9 of the judgment under appeal).
12 Commission 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).
13 Commission 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).
14 Commission Implementing Regulation 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).
15 The variable duty minimum import price 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.
16 See recital 20 et seq. of the regulation at issue and paragraphs 15 to 18 of the judgment under appeal.
17 Recital 57 of the regulation at issue.
18 See, ex multis, judgment of 29 January 2026, Deutsche Bank and BHW Bausparkasse v ECB (C‑556/24 P, not published, EU:C:2026:59, paragraph 59 and the case-law cited).
19 See, ex multis, judgment of 3 September 2026, Ereğli Demir ve Çelik Fabrikaları and Others v Commission (C‑499/24 P, EU:C:2026:693, paragraph 106 and the case-law cited).
20 See, in that regard, Opinion of Advocate General Wahl in Total v Commission (C‑597/13 P, EU:C:2015:207, points 104 to 107 and the case-law cited).
21 See, to that effect, ex multis, judgment of 15 January 2026, XH v Commission (Harassment during sick leave) (C‑75/24 P, EU:C:2026:6, paragraph 136 and the case-law cited). See also, by analogy, order of 21 July 2020, Abaco Energy and Others v Commission (C‑436/19 P, not published, EU:C:2020:606, paragraphs 68, 75 and 85).
22 See paragraph 25.
23 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).
24 The Commission does not actually contest the factual difference identified by the appellants.
25 According to the case-law, the Commission enjoys discretion in deciding whether, in accordance with the principle of proportionality, it is necessary to withdraw the acceptance of an undertaking in case of breach. See 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 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) and point 64 of my Opinion in BT Solar and RC-Log v Commission (C‑64/25 P, EU:C:2026:907).
26 See Article 8(9) of the basic anti-dumping regulation and Article 13(9) of the basic anti-subsidy regulation. See also judgment of 22 November 2012, Usha Martin v Council and Commission (C‑552/10 P, EU:C:2012:736, paragraph 32), and the judgment in Seraphim, paragraph 116.
27 See Article 172(2) of the Union Customs Code in force at the time of the material time for the present proceedings (that is, 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); it 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)). See also points 84 to 89 of my Opinion in BT Solar and RC-Log v Commission (C‑64/25 P, EU:C:2026:907).
28 Depending on the circumstances of each case, those duties will also apply to imports to which, at the time of their release for free circulation, a new derogation regime is applicable, the eligibility of which depends on the absence of a breach of the undertaking. That is the case in the proceedings relating to my Opinion in BT Solar and RC-Log v Commission (C‑64/25 P, EU:C:2026:907).
29 As explained in point 36 above, if the imports are released for free circulation at a time when the undertaking has been repealed under Article 172(2) of the Union Customs Code, the undertaking regime will not be applicable to those imports.
30 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).
31 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 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).
32 See footnote 26 above.
33 See footnote 27 above.
34 See recital 42 of the regulation at issue. The undertaking applied only to sales to the first independent customer in the European Union.
35 Recital 43 of the regulation at issue, by reference to recitals 20 and 23 thereof.
36 Paragraph 30 of the judgment under appeal.
37 Paragraphs 31 to 33 of the judgment under appeal.
38 Paragraph 42 of the judgment under appeal.
39 See, to that effect, judgment of 28 April 2022, Yieh United Steel v Commission (C‑79/20 P, EU:C:2022:305, paragraph 52).
40 Recitals 20 to 25 of the regulation at issue.
41 See recitals 28 and 48 of the regulation at issue.
42 See recitals 25 and 43 of the regulation at issue.
43 See, in that regard, Opinion of Advocate General Tanchev in Sky and Others (C‑371/18, EU:C:2019:864, point 119). For an application of that principle in the Court of Justice’s case-law, see, for example, order of 16 July 1998, N v Commission (C‑252/97 P, EU:C:1998:385, paragraph 28).