Information;Order — ECLI:EU:C:2023:446
Date: 2023-06-05
Language of the case: English
Court formation: Vice-President
Subject matter: Dumping;External relations;Commercial policy;Procedural provisions
Procedure: Application to intervene;Action for annulment;Appeal - unfounded
Origin: Belgium

ORDER OF THE VICE-PRESIDENT OF THE COURT 5 June 2023(*) (Appeal – Intervention – Commercial policy – Dumping – Imports of stainless steel cold-rolled flat products originating in India and Indonesia – Representative trade association) In Case C‑140/23 P (I), APPEAL under the first paragraph of Article 57 of the Statute of the Court of Justice of the European Union, brought on 8 March 2023, European Association of Non-Integrated Metal Importers & Distributors (Euranimi), established in Brussels (Belgium), represented by M. Campa, D. Rovetta, V. Villante, avvocati, and P. Gjørtler, advokat, applicant, the other parties to the proceedings being: PT Indonesia Ruipu Nickel and Chrome Alloy, established in Jakarta (Indonesia), applicant at first instance, European Commission, represented by G. Luengo and J. Zieliński, acting as Agents, defendant at first instance, THE VICE-PRESIDENT OF THE COURT, after hearing the Advocate General, M. Szpunar, makes the following Order 1 By its appeal, the European Association of Non-Integrated Metal Importers & Distributors (Euranimi) asks the Court of Justice to set aside the order of the President of the Third Chamber of the General Court of the European Union of 22 February 2023, PT Indonesia Ruipu Nickel and Chrome Alloy v Commission (T‑348/22, not published, ‘the order under appeal’, EU:T:2023:84), by which the General Court dismissed its application to intervene in support of the forms of order sought by PT Indonesia Ruipu Nickel and Chrome Alloy, the applicant at first instance in Case T‑348/22. The procedure before the General Court and the order under appeal 2 By application lodged at the Registry of the General Court on 9 June 2022, PT Indonesia Ruipu Nickel and Chrome Alloy brought an action for annulment of Commission Implementing Regulation (EU) 2022/433 of 15 March 2022 imposing definitive countervailing duties on imports of stainless steel cold-rolled flat products originating in India and Indonesia and amending Implementing Regulation (EU) 2021/2012 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of stainless steel cold-rolled flat products originating in India and Indonesia (OJ 2022 L 88, p. 24). 3 By document lodged at the Court Registry on 12 September 2022, Euranimi sought leave to intervene in Case T‑348/22 in support of the form of order sought by PT Indonesia Ruipu Nickel and Chrome Alloy. 4 By the order under appeal, the President of the Third Chamber of the General Court dismissed that application to intervene. 5 In that regard, he observed, in paragraph 8 of that order, that an association which purports to defend the interests of its members is granted leave to intervene if it represents an appreciable number of undertakings active in the sector concerned, if its object include the protection of the interests of its members and if the case in question may raise questions of principle affecting its members or the functioning of that sector. He further noted, in paragraph 11 of that order, that it is for the applicant for leave to intervene to adduce the evidence necessary to prove that it satisfies those conditions. 6 In order to determine whether that was so in the present case, the President of the Third Chamber of the General Court found, in the first place, in paragraph 23 of that order, that the application to intervene does not offer any evidence that Euranimi’s members are active in the field of steel and stainless steel products, in particular those covered by Implementing Regulation 2022/433. 7 In the second place, he considered, in paragraph 24 of the order under appeal, that that application does not contain any indication as to the representativeness of that association in the sector covered by that implementing regulation and, in paragraph 28 of that order, that it is not for the General Court to seek out and identify in the annexes to the application to intervene arguments establishing its well-foundedness. In any event, he found, in paragraph 29 of that order, that neither Euranimi’s Statute nor the mandates conferred on it by some of its members nor, moreover, the implementing regulation contain any information which would make it possible to ascertain its representativeness. 8 In the third place, the President of the Third Chamber of the General Court observed, in paragraph 33 of the order under appeal, that Euranimi had not identified the questions of principle liable to affect its members that had been raised in Case T‑348/22. 9 In the light, in particular, of those factors, the President of the Third Chamber of the General Court held, in paragraph 39 of that order, that Euranimi had not discharged its burden of proof and that, consequently, its application to intervene had to be rejected. Forms of order sought 10 By its appeal, Euranimi claims that the Court should: – set aside the order under appeal; – grant Euranimi leave to intervene in Case T‑348/22 in support of the forms of order sought by PT Indonesia Ruipu Nickel and Chrome Alloy; and – order the European Commission to pay the costs relating to the application for leave to intervene and the appeal proceedings. 11 The Commission contends that the Court should: – dismiss the appeal and – order Euranimi to pay the costs. The appeal Admissibility of the appeal Arguments 12 The Commission submits that the order under appeal is not one of the decisions referred to in Article 56 of the Statute of the Court of Justice of the European Union and that Article 57 of that statute is the only appropriate legal basis for bringing an appeal against that order. However, the present appeal concerns only Article 56. 13 The Court has held previously, in the order of 1 August 2022, Soudal and Esko-Graphics v Magnetrol and Commission (C‑74/22 P(I), EU:C:2022:632), and in the order of the Vice-President of the Court of 30 November 2022, Euranimi v EAA and Commission (C‑617/22 P(I), not published, EU:C:2022:941), that such an appeal must be dismissed as inadmissible. Assessment 14 It must be borne in mind that, according to the second subparagraph of Article 256(1) TFEU, decisions given by the General Court may be subject to a right of appeal to the Court of Justice on points of law only, ‘under the conditions and within the limits laid down by the Statute [of the Court of Justice of the European Union]’. 15 That provision is given specific expression in Articles 56 and 57 of the Statute of the Court of Justice of the European Union. 16 Thus, the first paragraph of Article 56 of that statute provides that an appeal may be brought before the Court of Justice, within two months of the notification of the decision appealed against, against final decisions of the General Court and decisions of that court disposing of the substantive issues in part only or disposing of a procedural issue concerning a plea of lack of competence or inadmissibility. 17 The first paragraph of Article 57 of that statute provides, for its part, that any person whose application to intervene has been dismissed by the General Court may appeal to the Court of Justice within two weeks from the notification of the decision dismissing the application. 18 In view of the relationship between Articles 56 and 57 of the Statute of the Court of Justice of the European Union, it cannot be held that an appeal against a decision of the General Court dismissing an application to intervene may be brought on the basis of Article 56 of that statute (order of the Vice-President of the Court of Justice of 30 November 2022, Euranimi v EAA and Commission, C‑617/22 P(I), not published, EU:C:2022:941, paragraph 13). 19 In the present case, it is true that the appeal was initially presented as being based on Article 56 of the Statute of the Court of Justice of the European Union, whereas it seeks to have set aside an order of the President of the Third Chamber dismissing an application to intervene. 20 The Court may, however, when hearing an appeal vitiated by such an error as to its basis, decide to consider it admissible after categorising it, of its own motion, as an appeal brought under Article 57 of the Statute of the Court of Justice of the European Union (see, to that effect, order of 1 August 2022, Soudal and Esko-Graphics v Magnetrol and Commission, C‑74/22 P(I), EU:C:2022:632, paragraph 36). 21 It is not necessary, in the present case, to proceed with such a recategorisation ex officio, however. 22 In fact, Euranimi lodged a corrigendum at the Registry of the Court of Justice in order to rectify the appeal since, due to a ‘clerical error’, it had been introduced not on the basis of the first paragraph of Article 57 of the Statute of the Court of Justice of the European Union, but on the basis of Article 56 of that statute. It is accordingly necessary to examine the present appeal on the basis of the first paragraph of Article 57 of that statute. 23 It must also be stated that the Commission’s argument to the effect that the appeal should be dismissed as inadmissible here by transposing the approach taken in the order of the Vice-President of the Court of Justice of 30 November 2022, Euranimi v EAA and Commission (C‑617/22 P(I), not published, EU:C:2022:941), cannot succeed. 24 Although the appeal brought in the case which gave rise to that order was dismissed, inter alia on account of the fact that it had been brought out of time, it is common ground that the present appeal was brought before the expiry of the time limit provided for in the first paragraph of Article 57 of the Statute of the Court of Justice of the European Union, extended by a single period of 10 days on account of distance pursuant to Article 51 of the Rules of Procedure of the Court of Justice. 25 It follows that the plea of inadmissibility put forward by the Commission must be rejected. Substance Arguments 26 In support of its appeal, Euranimi puts forward a single ground of appeal, alleging misinterpretation and misapplication of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union. 27 It submits that its application to intervene should have been granted, given that the three conditions referred to in paragraph 8 of the order under appeal were satisfied. 28 In that regard, it submits, in the first place, that its Statute, to which it referred at first instance, provides that its purpose is to defend and represent its members, including before the EU institutions. 29 In the second place, it stated before the General Court that it represents a large number of undertakings concerned by the goods at issue and that it was specifically mandated by several of its members. 30 Thus, the President of the Third Chamber of the General Court first of all misapplied the concept of interest in intervening by failing to take account of the fact that Euranimi was intervening on behalf of all its members. 31 Next, the order under appeal is based on an overly restrictive interpretation of the requirements of locus standi. In particular, no precise threshold of representativeness is expected of professional associations wishing to intervene before the Courts of the European Union. It is therefore necessary only to ascertain whether the applicant association has an interest in the result of the case. 32 Lastly, the General Court misinterpreted the scope of the mandates with which Euranimi was entrusted and incorrectly based itself on the principle that it is not for it to seek out and identify in the annexes to the application to intervene the pleas and arguments capable of forming the basis of it. Those mandates are not the only evidence of Euranimi’s interest in intervening; rather, they serve merely to support the arguments set out in that application. 33 In the third place, given that Implementing Regulation 2022/433 concerns products of major interest to Euranimi’s members, the issues raised in Case T‑348/22 are capable of affecting them to a significant extent. 34 The Commission contends that the single ground put forward in support of the appeal must be rejected as inadmissible or unfounded. Assessment 35 Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, any person establishing an interest in the result of a case submitted to the Court, other than a case between Member States, between institutions of the European Union or between Member States and those institutions may intervene in that case. 36 As observed by the President of the Third Chamber of the General Court in paragraph 8 of the order under appeal, a representative trade association, whose purpose is to protect the interests of its members, may be granted leave to intervene where the case raises questions of principle liable to affect those interests (orders of the President of the Court of Justice of 12 March 2019, Germany v Esso Raffinage, C‑471/18 P, not published, EU:C:2019:198, paragraph 14, and of 1 October 2019, Commission v Ville de Paris and Others, C‑179/19 P, not published, EU:C:2019:836, paragraph 7). 37 Furthermore, as highlighted by the President of the Third Chamber of the General Court in paragraph 11 of the order under appeal, it is for the applicant for leave to intervene to adduce the evidence necessary to prove that he or she satisfies the conditions arising from the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, without being subject to a lighter burden of proof (see, to that effect, order of the Vice-President of the Court of Justice of 21 June 2016, Bundesverband der Pharmazeutischen Industrie v Allergopharma, C‑157/16 P(I), not published, EU:C:2016:476, paragraphs 19 and 20). 38 Therefore, in order to be granted leave to intervene, a trade association must prove that it represents a significant proportion of the undertakings in the sector concerned (see, to that effect, orders of the President of the Court of Justice of 5 July 2018, Uniwersytet Wrocławski and Poland v REA, C‑515/17 P and C‑561/17 P, not published, EU:C:2018:553, paragraphs 11 to 13; of 1 October 2019, Commission v Ville de Paris and Others, C‑179/19 P, not published, EU:C:2019:836, paragraphs 8 and 9; and of 13 November 2019, Yokohama Rubber and EUIPO v Pirelli Tyre, C‑818/18 P and C‑6/19 P, not published, EU:C:2019:979, paragraph 7). 39 In that regard, the President of the Third Chamber of the General Court held, in essence, in paragraphs 23 and 29 of the order under appeal, that the evidence adduced before him by Euranimi did not establish that its members are active in the sector affected by Implementing Regulation 2022/433 or that it represents a significant proportion of the undertakings in that sector. 40 By its single ground of appeal, Euranimi in essence disputes that assessment, claiming that it demonstrated that it represents a large number of undertakings concerned by the goods at issue. 41 However, since that assessment relates to the facts put forward by Euranimi in support of its application to intervene, it should be borne in mind that, according to the settled case-law of the Court of Justice, in accordance with the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, appeals are limited to questions of law, to the exclusion of any assessment of the facts. The General Court therefore has sole jurisdiction to assess the evidence. The assessment of that evidence does not therefore constitute, except in the case of its distortion, a question of law which is subject, as such, to review by the Court of Justice in the context of an appeal (order of the Vice-President of the Court of Justice of 22 February 2022, Fastweb v Commission, C‑649/21 P(I), EU:C:2022:171, paragraph 27 and the case-law cited). 42 There is such distortion where, without recourse to new evidence, the assessment of the existing evidence is clearly incorrect. However, such distortion must be obvious from the documents on the Court’s file, without its being necessary to undertake a fresh assessment of the facts and the evidence. In that regard, where an appellant alleges distortion of the evidence by the General Court, that person must indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in that person’s view, led to such distortion (judgment of 16 February 2023, Commission v Italy and Spain, C‑635/20 P, EU:C:2023:98, paragraph 126 and the case-law cited). 43 Although Euranimi called into question the assessment of the facts made by the President of the Third Chamber of the General Court in paragraphs 23 and 29 of the order under appeal, it did not expressly rely on a distortion of evidence and nor did it specify the item of evidence adduced at first instance which, in its view, calls that assessment into question. 44 It follows that Euranimi’s argument seeking to call that assessment into question must be rejected. 45 In those circumstances, first, the argument that the President of the Third Chamber of the General Court relied, incorrectly, in paragraphs 25 to 28 of the order under appeal, on the principle that it is not for him to seek out and identify in the annexes to the application to intervene the pleas and arguments capable of forming the basis of it, must be rejected as ineffective, in so far as it relates to considerations that were included purely for the sake of completeness. 46 Although the purpose of the considerations set out in paragraphs 25 to 28 of that order was to justify a failure to examine the evidence set out in the annexes to the application to intervene, the President of the Third Chamber of the General Court examined, in the alternative, that evidence in paragraph 29 of that order and, as is apparent from paragraph 44 of the present order, made an assessment of that evidence which is not effectively disputed by Euranimi. 47 Second, the argument alleging misinterpretation of the degree of representativeness which a professional association must demonstrate in order to be granted leave to intervene before the Courts of the European Union must also be rejected. 48 Since Euranimi does not effectively dispute the finding that it did not provide any evidence to establish that it was representative of the undertakings in the sector in question, it cannot be held that the President of the Third Chamber of the General Court disregarded the requirements set out in paragraphs 36 and 38 of the present order by inferring from that assessment that Euranimi could not be classified as a ‘representative trade association’ for the purposes of the application of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union. 49 Furthermore, given that it is apparent from the case-law referred to in paragraph 36 of the present order that a trade association which is not representative cannot be granted leave to intervene before the Courts of the European Union unless it has a direct interest in the outcome of the dispute in question, Euranimi’s arguments alleging that its purpose includes the protection of the interests of its members and that Case T‑348/22 may raise questions of principle affecting its members must be rejected as ineffective. 50 In the light of all the foregoing, the single ground of appeal put forward by Euranimi must be rejected and the appeal must accordingly be dismissed in its entirety. Costs 51 In accordance with Article 184(2) of its Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs. 52 Under Article 138(1) of those rules, applicable to the procedure on appeal by reason of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. 53 Since the Commission has applied for costs to be awarded against Euranimi and the latter has been unsuccessful, Euranimi must be ordered to bear its own costs relating to the appeal proceedings and to pay those incurred by the Commission. On those grounds, the Vice-President of the Court hereby orders: 1. The appeal is dismissed. 2. European Association of Non-Integrated Metal Importers & Distributors (Euranimi) shall bear its own costs relating to the appeal proceedings and pay those incurred by the European Commission. Luxembourg, 5 June 2023. A. Calot Escobar L. Bay Larsen Registrar Vice-president * Language of the case: English.