ORDER OF THE PRESIDENT OF THE FOURTH CHAMBER OF THE GENERAL COURT
23 October 2020 (*)
(Subsidy – Imports of biodiesel originating in Indonesia – Definitive countervailing duty – Intervention – Interest in the result of the case – Representative association the purpose of which is to defend the interests of its members – Confidentiality)
In Case T‑138/20,
PT Ciliandra Perkasa, established in West Jakarta (Indonesia), represented by F. Graafsma, J. Cornelis and E. Rogiest, lawyers,
applicant,
v
European Commission, represented by P. Kienapfel, G. Luengo and P. Němečková, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU for annulment of Commission Implementing Regulation (EU) 2019/2092 of 28 November 2019 imposing a definitive countervailing duty on imports of biodiesel originating in Indonesia (OJ 2019 L 317, p. 42), in so far as it concerns the applicant,
makes the following
Order
Procedure
1        By application lodged at the Registry of the General Court on 2 March 2020, the applicant, PT Ciliandra Perkasa, brought an action for annulment of Commission Implementing Regulation (EU) 2019/2092 of 28 November 2019 imposing a definitive countervailing duty on imports of biodiesel originating in Indonesia (OJ 2019 L 317, p. 42; ‘the contested measure’), in so far as it concerns the applicant.
2        By document lodged at the Registry of the General Court on 10 June 2020, the European Biodiesel Board (‘the EBB’) applied for leave to intervene in support of the form of order sought by the Commission.
3        That application to intervene was served on the main parties in accordance with Article 144(1) of the Rules of Procedure of the General Court.
4        By document lodged at the Registry of the General Court on 28 August 2020, the applicant stated that it opposed the EBB’s intervention.
Law
Application to intervene
5        Under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 thereof, any person establishing an interest in the result of a case submitted to the General Court, except in cases between Member States, between institutions of the Union or between Member States and institutions of the Union, has the right to intervene.
6        It is settled case-law that representative associations whose object is to protect their members may be granted leave to intervene in cases raising questions of principle liable to affect those members (orders of the President of the Court of Justice of 17 June 1997, National Power and PowerGen v Commission, C‑151/97 P(I) and C‑157/97 P(I), EU:C:1997:307, paragraph 66, and of 28 September 1998, Pharos v Commission, C‑151/98 P, EU:C:1998:440, paragraph 6; order of 26 July 2004, Microsoft v Commission, T‑201/04 R, EU:T:2004:246, paragraph 37). More specifically, an association may be granted leave to intervene in a case if it represents an appreciable number of undertakings active in the sector concerned, if its objects include that of protecting its members’ interests, if the case may raise questions of principle affecting the functioning of the sector concerned, and if the interests of its members may therefore be affected to an appreciable extent by the forthcoming judgment (orders of 28 May 2004, Akzo Nobel Chemicals and Akcros Chemicals v Commission, T‑253/03, EU:T:2004:164, paragraph 18, and of 26 July 2004, Microsoft v Commission, T‑201/04 R, EU:T:2004:246, paragraph 37).
7        The Court of Justice has stated that the adoption of a broad interpretation of the right of associations to intervene is intended to facilitate assessment of the context of cases, whilst avoiding multiple individual interventions which would compromise the effectiveness and proper course of the procedure (order of the President of the Court of Justice of 17 June 1997, National Power and PowerGen v Commission, C‑151/97 P(I) and C‑157/97 P(I), EU:C:1997:307, paragraph 66).
8        It is in the light of that case-law that the EBB’s application to intervene should be examined.
9        In the first place, the applicant submits that the EBB does not represent an appreciable number of undertakings active in the sector concerned, namely the biodiesel production sector.
10      However, it is apparent from the contested measure that the Commission initiated an anti-subsidy investigation with regard to imports into the European Union of biodiesel originating in Indonesia following a complaint lodged by the EBB on behalf of producers representing 32% of total Union production (recitals 1 to 3).
11      In addition, the EBB states in its application to intervene, inter alia, that it is a European federation of biodiesel producers comprising 45 undertakings and associations across Europe.
12      The only fact relied on by the applicant which is capable of establishing that the EBB does not represent an appreciable number of undertakings active in the sector concerned is that 6 of the EBB’s 45 members are not ‘full’ members but ‘associate’ members, which do not produce biodiesel or which produce biodiesel in countries that are not members of the European Union.
13      Admittedly, it is apparent from the EBB’s Articles of Association that, whilst the ‘full’ members are companies or groups of companies that produce biodiesel in the European Union, the ‘associate’ members are, inter alia, associations that do not necessarily represent biodiesel producers.
14      However, even if the fact relied on by the applicant and referred to in paragraph 12 above were established, the EBB would still have 39 members that produce biodiesel in the European Union, which represents an appreciable number of undertakings in the sector concerned.
15      In that regard, it should be emphasised that, in Commission Implementing Regulation (EU) 2019/1344 of 12 August 2019 imposing a provisional countervailing duty on imports of biodiesel originating in Indonesia (OJ 2019 L 212, p. 1), the Commission stated that, during the investigation period, 44 producers in the European Union that were members of the EBB and a further 196 known non-member producers constituted the Union industry for the sector concerned (recital 264).
16      That statement has not been contested by the applicant.
17      Thus, the total number of European producers in the sector concerned is limited and the number of ‘full’ members of the EBB appears sufficient for that association to be regarded as being representative of an appreciable number of undertakings active in that sector.
18      In the second place, it is stated in Article II of its Articles of Association that the purpose of the EBB is, inter alia, to defend the interests of its members in the biodiesel production industry and to adopt all measures in order to do so.
19      In the third place, the present dispute could, in view of the pleas in law and arguments relied on by the applicant, lead the General Court to specify the conditions under which a State mechanism to promote the domestic use of biodiesel may be classified as a ‘subsidy’ within the meaning of Article 3 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 (OJ 2016 L 176, p. 55). Accordingly, the present case may raise questions of principle affecting the functioning of the sector concerned.
20      In addition, the contested measure imposes a definitive countervailing duty on imports of biodiesel originating in Indonesia following the finding by the Commission of an injury and of a threat of injury to the sector concerned. A possible annulment of that measure by the General Court is therefore likely to affect, to an appreciable extent, the interests of the EBB’s members, as it would lead to the retroactive disappearance of a countervailing duty imposed by the Commission on Indonesian biodiesel producers, which, according to the Commission, have benefited from subsidies giving rise to injury and a threat of injury to European biodiesel producers.
21      It follows from the foregoing that the EBB satisfies the conditions, laid down in the case-law cited in paragraph 6 above, governing leave to intervene as an association which represents the interests of its members.
22      Furthermore, the applicant submits that the EBB’s lawyers do not have an authority to act given by the EBB which is specific to the present case.
23      In that regard, it should be borne in mind that, under Article 51(3) of the Rules of Procedure, ‘where the party represented by the lawyer is a legal person governed by private law, the lawyer must lodge at the Registry an authority to act given by that person’. Paragraph 4 of that article provides that ‘if the documents referred to in paragraphs 2 and 3 are not lodged, the Registrar shall prescribe a reasonable time limit within which the party concerned is to produce them’.
24      In the present case, by letter lodged at the Registry on 4 September 2020, the EBB’s lawyers produced, in accordance with Article 51(3) of the Rules of Procedure, a valid authority to act given by the EBB in respect of the present case.
25      The argument relied on by the applicant therefore has no factual basis.
26      In light of all the foregoing considerations, the EBB must be granted leave to intervene in the present proceedings in support of the form of order sought by the Commission.
Application for confidential treatment
27      The applicant has requested, in accordance with Article 144(5) and (7) of the Rules of Procedure, that certain confidential material in the file be omitted from the documents communicated to the EBB and has produced, for the purposes of that communication, a non-confidential version of the pleadings and documents in question.
28      At this stage, the communication to the EBB of procedural documents already served or to be served on the parties must therefore be confined to non-confidential versions. A decision on the merits of the application for confidential treatment will, if necessary, be taken at a later stage in the light of any objections or observations that may be submitted on that issue.
On those grounds,
THE PRESIDENT OF THE FOURTH CHAMBER OF THE GENERAL COURT
hereby orders:
1.      The European Biodiesel Board (EBB) is granted leave to intervene in Case T‑138/20 in support of the form of order sought by the European Commission.
2.      The Registrar shall send the EBB a non-confidential version of each procedural document served on the parties.
3.      A period shall be prescribed within which the EBB may submit any observations it may have regarding the application for confidential treatment. The decision on the merits of that application is reserved.
4.      A period shall be prescribed within which the EBB may submit a statement in intervention, without prejudice to the possibility of its supplementing that statement at a later date, should the need arise, following a decision on the merits of the application for confidential treatment.
5.      The costs are reserved.
Luxembourg, 23 October 2020.
E. Coulon
S. Gervasoni
Registrar
President
*      Language of the case: English.