Overview

Commission Regulation (EU) No 182/2013 of 1 March 2013 (the Commission Regulation) made imports into the European Union (the EU) of solar panels or key components originating in or consigned from the People’s Republic of China subject to compulsory registration from 6 March 2013. Article 14(5) of Council Regulation (EC) No 1225/2009 of 30 November 2009 (the Council Regulation) allows the European Commission (the Commission) to require the registration of imports so that anti-dumping measures may subsequently be applied against those imports from such date.

European anti-dumping legislation has replaced the legislation of the 27 countries who are members of the EU (the Member States) and therefore each Member State is subject to compulsory registration.

Compulsory registration of Chinese solar panels increases the likelihood that tariffs will be imposed on Chinese manufactured photovoltaic solar panels and other key components imported into the EU.

Background

Compulsory registration of imported Chinese solar panels to the EU is in response to the EU’s investigation, launched on 6 September 2012, into the “dumping” (the import of below-cost goods) into the EU of Chinese crystalline silicon photovoltaic modules or panels and cells and wafers used in them and whether the importation is distorting trade in the EU. It is also in response to a separate investigation, launched on 8 November 2012 by the EU, into whether solar panels originating from China are receiving Chinese government subsidies. Chinese companies are reported to currently have an 80 per cent market share in the EU.

The investigations were launched following a complaint made by EU ProSun, a group of 25 solar panel producers led by Germany’s SolarWorld AG. According to an article in Solar Power Portal, EU ProSun has requested that tariffs of up to 120 per cent be imposed so that EU producers can operate profitably.

The investigation launched by the EU coincides with the implementation of tariffs, ranging from 15 per cent to 250 per cent, by the US Government, following a similar investigation into the dumping of Chinese solar products into the US, and subsidies provided by the Chinese Government to the Chinese solar industry.

VAT

In addition to the above-mentioned investigations, there is an ongoing dispute between the UK Government and the Commission over VAT. The Commission maintains that the UK Government’s reduced 5 per cent VAT rate applied to “energy saving materials”, provided to solar PV and solar thermal projects permanently installed in residential or charity premises in the UK, in fact contradicts the EU VAT Council Directive 2006/112/EC. HM Revenue & Customs has so far rejected the Commission’s opinion, but if the Commission succeeds in challenging the UK Government’s interpretation, this could lead to a significant increase in the cost of solar projects, affecting the UK residential market in particular.

Provisional duties

The Commission has until 5 June 2013 to impose provisional duties on imported Chinese solar panels as part of anti-dumping proceedings, and until 7 August 2013 to impose such duties as part of anti-subsidy proceedings, both of which could be imposed at any time. Pursuant to Article 10(4) of the Council Regulation, an anti-dumping duty may be levied on products 90 days prior to the application of the provisional duties, provided that imports have been registered.

For provisional findings there are three possible outcomes: (a) impose provisional anti-dumping duties (normally for a six-month period); (b) continue the investigation without imposing provisional duties; or (c) terminate the investigation.

Final decision

The Commission is legally obliged to take a decision on the imposition of any definitive measures within 15 months of the investigation being started. Therefore, a final decision on anti-dumping tariffs must be made by 5 December 2013, and by 7 February 2014 on any anti-subsidy tariff. The final findings will be published in the Official Journal of the EU.

For the final decision, the Commission may propose to the European Council (the Council): (a) terminating the case without measures; or (b) imposing definitive anti-dumping measures for a duration of five years.

Circumstances required by the EU in order to impose anti-dumping measures

In order to impose an anti-dumping tariff, the investigation must show that:

  • there is dumping by the exporting producers in the country/countries concerned;
  • material injury has been suffered by the community industry concerned;
  • there is a causal link between the dumping and injury found; and
  • the imposition of measures is not against the community interest.

Before imposing any measures the Commission will closely examine whether the cost to the EU economy would outweigh the benefit to the complainants.

Tariff

The exact level of any tariff that may be imposed by the EU is not known but the tariff will aim either to remove the effects of dumping the imported goods in the EU or to remove the injury caused by the dumping, whichever is lower.

The amount of duty imposed, either provisionally or definitively, should not exceed the margin of dumping. i.e. the Council may impose a tariff that levels out the cost of the imported goods (subject to the dumping tariff) and the goods produced in the community that have been adversely affected by the dumping. However, if a lower duty would be sufficient to remove the injury caused to the community industry, then a lower duty should be imposed.

The duties are paid by the importer in the EU. The tariff usually takes the form of an ad valorem duty, but could also comprise specific duties or price undertakings. Any tariff imposed should be the same for all EU states, but may vary from manufacturer to manufacturer or amongst exporters.

There are a number of examples of tariffs being imposed on Chinese goods in the past. For example, a similar situation regarding a provisional anti-dumping duty on imports of ceramic tableware and kitchenware originating in China (November 2012) saw an average ad valorem duty of 26.6 per cent imposed on cooperating Chinese manufacturers (varying for each individual manufacturer) and an adjusted duty of 58.8 per cent imposed on non-cooperating or unknown exporting producers country-wide in China.

According to the Commission Regulation, the allegations in these investigations estimate the amount of possible future liability is 60 to 70 per cent ad valorem on the CIF import value for dumping and 10 to 15 per cent ad valorem on the CIF import value for subsidisation (meaning 60 per cent to 85 per cent in total by current estimate).

Exporting producers may offer "undertakings", for example agreeing to sell at a minimum price. If their offer is accepted, anti-dumping duties should not be collected on imports. The Commission is not obliged to accept an offer of an undertaking.

Refunds and challenge

An importer may request reimbursement of the duty paid where it can be demonstrated that the dumping margin has been eliminated or reduced below the level of the duty in force.

The Council Regulation complies with the EU’s international obligations. In particular Article 13 of the World Trade Organization’s Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 allows for review of determinations, via judicial review, in the European Court of Justice and the Court of First Instance.

Conclusion

Although any tariff may provide obvious protection to European solar panel and key component manufacturers, there are fears that a tariff could in fact adversely affect the wider EU economy and jobs, due to a significant increase in photovoltaic panel prices and a reduction in installation of solar projects.

A report by European think-tank Prognos stated that, if a duty rate of 20 per cent were put in place, it could cost the UK alone, £1.6 billion and 19,300 jobs. A 60 per cent duty could apparently cost more than £27 billion over three years and the loss of up to 242,000 jobs across Europe. Whilst such forecasts may appear inflated, if, in addition, the UK Government’s dispute with the Commission over the 5 per cent reduced rate of VAT for UK solar projects also sees costs rising, this could have grave implications for the solar development industry.

The UK currently has little domestic solar manufacturing capability. Therefore, any tariff on Chinese products would likely have a significant impact on the cost of solar developments in the UK. The UK Department of Energy and Climate Change’s degression modelling for the solar industry is based on the idea that the cost of solar projects will continue to decrease, therefore any tariff levied on cheap Chinese solar products could destabilise the UK solar industry.

However, according to the President of EU ProSun, Milan Nitzschke, quoted in Solar Power Portal, despite duties imposed on Chinese solar panels by the US Government in 2012 following a dumping and subsidy investigation, ranging from 15 per cent to 250 per cent, the US has found its solar market is continuing to grow.

Ultimately any importer of Chinese solar panels into the EU may find itself subject to an additional tariff on Chinese solar products from 6 March 2013, whether or not the purchase order was made in advance of this date. As a result the industry has already seen the cancellation of contracts for orders of Chinese products.