AG: past solar undertaking fraud stays billable after repeal

Advocate General Biondi delivered his Opinion on 5 November 2026Europa in Case C-59/25 P, Zhejiang Sunflower Great Health (formerly Zhejiang Sunflower Light Energy Science & Technology) and Sunowe Solar v Commission. The appeal challenges the General Court judgment of 20 November 2024 (T-733/19)Europa, which had dismissed the companies' action for annulment of Commission Implementing Regulation 2019/1329. That regulation invalidated undertaking invoices issued by Zhejiang Sunflower and ordered the collection of the anti-dumping and countervailing duties that had been suspended while the price undertaking was in force.Europa

The dispute goes back to the 2013 solar-modules trade-defence package. By Implementing Regulations No 1238/2013 and No 1239/2013 the Union imposed definitive anti-dumping and countervailing duties on crystalline silicon photovoltaic modules and cells originating in or consigned from China. The China Chamber of Commerce for Import and Export of Machinery and Electronic Products offered a price undertaking on behalf of cooperating exporters including Zhejiang, which the Commission accepted by Decision 2013/423/EU and confirmed by Implementing Decision 2013/707/EU. Exporters admitted to the undertaking sold at or above a minimum import price and were exempted from the duties as long as they complied. The duties were extended by Implementing Regulations 2017/367 and 2017/366, before the Commission repealed the undertaking on 15 September 2017 by Implementing Regulation 2017/1570, with effect from 1 October 2017, replacing it with a variable-duty minimum import price rule.

After the repeal, customs authorities of a Member State supplied evidence that Zhejiang had breached the undertaking while it was still in force.Europa The Commission's investigation found systematic sales below the minimum import price, kickback payments routed through a Hong Kong company related to the exporter that pushed effective resale prices below the floor, inflated module prices offset by undervaluation of engineering, procurement and construction services in solar-park packages, captive sales of modules for solar parks built by related companies, and unreported resales and customers. On that basis Regulation 2019/1329 invalidated the undertaking invoices covering the affected transactions and declared the corresponding anti-dumping and countervailing duties collectable.EuropaEuropa

Biondi proposes that the Court of Justice dismiss the appeal.Europa The first ground, alleging breach of proportionality because the duties were ordered after the underlying measures and the undertaking had lapsed, is in his view a plea raised for the first time on appeal and therefore inadmissibleEuropa. The second ground is admissible but unfoundedEuropaEuropa: Article 8(9) of Regulation 2016/1036 and Article 13(9) of Regulation 2016/1037 entitle the Commission to investigate breaches committed while the undertaking was in force even after its repealEuropa, and the expiry of the underlying measures does not remove that powerEuropa. Duties can still be collected, but only on imports released for free circulation while both the undertaking and the measures were in force.Europa He distinguishes the Seraphim judgment, where undertaking and measures were still live, and points to recital 54 of the repeal regulation, which expressly contemplates post-repeal breach investigations. The third ground, disputing the relatedness of two Italian companies under clause 5.18 of the undertaking, fails because the General Court relied on a second, independent and unchallenged basis: participation in the fraudulent circumvention schemeEuropaEuropa.

For importers, related EU resellers and trade-defence advisers, the practical point is that neither the repeal of a price undertaking nor the expiry of the underlying duties shields past imports from duty collection where breach while the undertaking applied is establishedEuropa. Customs debts suspended under the undertaking revive for the affected consignments.Europa

Biondi proposes that the Court declare the first ground inadmissible and reject the second and third as unfounded.Europa Its legal basis is Article 8(9) of Regulation (EU) 2016/1036 and Article 13(9) of Regulation (EU) 2016/1037.Europa