ORDER OF THE PRESIDENT OF THE COURT

18 May 2011 ( )

(Appeal –Interim proceedings – Application for interim measures – Suspensory effect of an appeal against a judgment of the General Court – Dumping – Imports of glyphosate originating in China – Review procedure– No need to adjudicate)

In Case C‑337/09 P-R

APPLICATION for interim measures under Article 279 TFEU andas appropriateArticle 60 of the Statute of the Court of Justice of the European Union lodged on 30 December 2009

Council of the European Union represented by J.-P. Hixacting as Agent

appellant

the other parties to the proceedings being:

Zhejiang Xinan Chemical Industrial Group Co. Ltd established in Jiande City (China)represented by D. Horovitzavocat

applicant at first instance and in these proceedings

Commission of the European Communitiesrepresented by T. Scharf and N. Khanacting as Agentswith an address for service in Luxembourg

Association des utilisateurs and distributeurs de l’agrochimie européenne (Audace) represented by J. Flynn QC

interveners at first instance

THE PRESIDENT OF THE COURT

after hearing the Advocate GeneralJ. Kokott

makes the following

Order

1 By an appeal lodged on 17 August 2009the Council of the European Union sought to have set aside the judgment of the Court of First Instance of the European Communities (now ‘the General Court’) in Case T‑498/04 Zhejiang Xinan Chemical Industrial Group v Council[2009] ECR II‑1969 (‘the judgment under appeal’)by which the General Court annulled Article 1 of Council Regulation (EC) No 1683/2004 of 24 September 2004 imposing a definitive anti‑dumping duty on imports of glyphosate originating in the People’s Republic of China (OJ 2004 L 303p. 1) (‘the contested regulation’)in so far as it concerns Zhejiang Xinan Chemical Industrial Group Co. Ltd.

2 By application lodged at the Registry of the Court on 30 December 2009Zhejiang Xinan Chemical Industrial Group Co. Ltd (‘Zhejiang Xinan’) lodged an application for interim measures pursuant to Article 279 TFEU andas appropriateArticle 60 of the Statute of the Court of Justice of the European Unionrequesting an order that the effects of the judgment under appeal are not suspended pending the outcome of the appeal lodged by the Council against that judgment.

Legal and factual context

3 On 24 September 2004on a proposal from the Commission of the European Communitiesthe Council adopted the contested regulation.

4 On 14 May 2009the Commission adopted Decision 2009/383/EC suspending the definitive anti-dumping duties imposed by Regulation No 1683/2004 (OJ 2009 L 120p. 20)by which it suspended the definitive anti-dumping duties imposed by that regulation for a period of nine months as from 16 May 2009that is to say until 15 February 2010.

5 According to recital 8 of that decisiongiven the temporary change in market conditionsand in particular the level of prices on the European Union markettogether with the high profit levels of the European Union industry notwithstanding decreasing export prices from Chinait was considered that the injury linked to the imports of the product concerned originating in China was unlikely to resume as a result of the suspension.

6 Zhejiang Xinan is a company incorporated under Chinese law and listed on the Shanghai Stock Exchange (China). Glyphosatewhich is a basic chemical herbicide widely used by farmers throughout the worldis one of the main products produced and sold by that company on the Chinese and world markets.

7 Following an action brought by Zhejiang Xinanthe General Courtby the judgment under appealannulled Article 1 of the contested regulation in so far as it concerns Zhejiang Xinan. The General Court upheld the first plea in law put forward by Zhejiang Xinanalleging that the institutions of the European Union had infringed the first indent of Article 2(7)(c) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56p. 1)as amended by Council Regulation (EC) No 461/2004 of 8 March 2004 (OJ 2004 L 77p. 12)by refusing to grant it market economy status. The judgment under appeal annulled the contested regulation only in so far as it concerns Zhejiang Xinan.

8 On 18 August 2009the Council lodged its appeal against the judgment under appeal. The Commission has submitted observations in support of the form of order sought by the Council.

9 Following a request from the European Glyphosate Associationwhich took the view that the expiry of the anti-dumping measures was likely to result in a continuation or recurrence of dumping and recurrence of injury to the European Union industrythe Commission initiatedon 29 September 2009an expiry review of those measuresunder Article 11(2) of Regulation No 384/96as amended by Regulation No 461/2204.

10 The Commission sent a standard letter to all the exporters/producers to inform them of the expiry review of the anti-dumping measures.

11 Zhejiang Xinan informed the Commission thatas a result of the judgment under appealit considered that it did not have to participate in the expiry review of those measures.

12 The Commission nevertheless requested that Zhejiang Xinan cooperate in the review procedure. As Zhejiang Xinan stated in its application for interim measuresit cooperated ‘under protest’in submitting the requested information andhaving been designated for that purposein responding to a detailed questionnaire.

13 As it did not agree with the Commission’s intention to carry out on-the-spot verificationsZhejiang Xinan lodged the present application for interim measures.

14 On 11 February 2010the Council adopted Implementing Regulation (EU) No 126/2010 extending the suspension of the definitive anti-dumping duty imposed by Regulation No 1683/2004 (OJ 2010 L 40p. 1). Regulation No 126/2010 extended the suspension of the anti-dumping duty for a period of one yearnamely until 11 February 2011.

Forms of order sought and arguments of the parties

15 For the purpose of requesting the Court to order that the effects of the judgment under appeal are not suspended on account of the lodging of the appeal by the CouncilZhejiang Xinan submitsfirst of allthat notwithstanding the fact that the Commissionon 14 May 2009 and then on 11 February 2010itself ordered the suspension of the anti-dumping measures with regard to all imports of glyphosate from Chinathe suspensory effect of such an appeal has the consequence of undermining Zhejiang Xinan’s entry into the European Union market and requiring it to participate in the expiry review.

16 Such a suspensory effect cannot apply to an administrative procedure such as the expiry review of anti-dumping measures. Furthermoreaccording to Zhejiang Xinanthe issues raised in its application for interim measures are not the same asthose in the appeal.

17 PrincipallyZhejiang Xinan submits that the Commission’s insistence on the suspensory effect of the appeal lodged against the judgment under appeal and on the consequences of the suspension of execution of that judgmentnamely thoseof subjecting Zhejiang Xinan to the burdens and risks associated with that situation and the disruptions of the expiry reviewbreaches its fundamental rights deriving from the principle of non bis in idem and the principle of legal certainty.

18 Also principallyZhejiang Xinan submits that Article 278 TFEU applies to the present case without exception. It takes the view that the FEU Treaty does not provide for any automatic exception to the general rule set out in Article 278 TFEUaccording to which actions brought before the Court of Justice are not to have suspensory effect. Article 279 TFEUaccording to which the Court may in any cases before it prescribe any necessary interim measuresdoes not imply such an automatic suspension of the judgment against which an appeal has been lodged.

19 According to Zhejiang Xinanthe rationale for the exception to the principle of the immediate effect of rulings of the General Court that annul regulationsan exception which is provided for in the second paragraph of Article 60 of the Statute of the Court of Justiceis explained by the fact that regulations are acts of general application applying to a great number of individual situations. If such an act were initially regarded as void following its annulment by a judgment of the General Court and subsequently reintroduced into the European Union legal order following the setting aside of that judgment by the Court of Justicethat could lead to great uncertainty. Howeverthat rationale does not apply in the present case given that the Commission had ordered the overall suspension of the measure imposed by the contested regulation.

20 Zhejiang Xinan submits that the reasoning set out in support of the argument put forward against the applicability to this case of the general rationale for the exception provided for in the second paragraph of Article 60 of the Statute of the Court of Justice also extends to the measure annulled by the judgment under appeal. According to Zhejiang Xinanregulations imposing anti-dumping duties areas regards their nature and their scopeof a legislative characterin that they apply to all the economic operators concerned taken as a wholealthough their provisions may be of individual concern to certain economic operators. As a result regulations which provide for anti-dumping measures are of a hybrid nature.

21 Consequentlythe annulment of certain provisions in a regulation which provides for anti-dumping measures does not amount to the annulment of the entire regulation. It is the latter situation that is covered by the second paragraph of Article 60 of the Statute of the Court of Justicewhereas that provision does not apply to the former situationas in this case. Article 1 of the contested regulation was annulled in so far as it concerns Zhejiang Xinan.

22 In the alternativeZhejiang Xinan requests that the Court orderas appropriateunder the second paragraph of Article 60 of the Statute of the Court of Justicethat the effects of the judgment under appeal are not suspended by the lodging of the Council’s appealas that suspension threatens to cause it serious and irreparable harm.

23 Firstas regards the condition relating to a prima facie caseZhejiang Xinan submits that the judgment under appeal sufficiently creates a prima facie case as such regarding the merits of its case in the appeal proceedings. Secondlythe urgency of and the need for the relief sought by Zhejiang Xinan is the result of the serious risks and damage to which it remains exposed in the marketa situation whichis compounded by the disruption of the review procedure. Thirdlyas regards the balance of interestsZhejiang Xinan states that Decision 2009/383by which the Commission suspended the anti-dumping measures provided for by the contested regulation means in practice that Zhejiang Xinan is the only party to this case whose interests are affected by the suspension of execution of the judgment under appeal.

24 The Council and the Commission submitted their written observations on 18 and 19 February 2010 respectively. Those two institutions request that the Court dismiss the application for interim measures and order Zhejiang Xinan to pay the costs.

25 The Council submitsin the first placethat the expiry review of the anti-dumping measures and the requested interim measurenamely the order that the effects of the judgment under appeal are not suspended despite the lodging of the appealare unconnected andthereforeZhejiang Xinan cannot rely on the alleged mandatory participation in the expiry review in support of its request for interim measures. Before elaborating on that submissionthe Council makes three preliminary observations.

26 The Council recalls that the anti-dumping duties have been suspended since May 2009. Therefore it submitsfirst of allthatthe fact that the effects of the judgment under appeal were suspended by the appeal lodged by the Council hadand currently hasno practical consequences. Secondlyaccording to the Councilneither the judgment under appeal nor the appeal has any bearing on the legality of the Commission’s initiation of the expiry review. Lastlythe Council states that Zhejiang Xinan is not obliged to participate in that expiry reviewgiven that participation in the review and cooperation with the Commission are voluntary.

27 The Council therefore contendsfirstthat the expiry review of the anti-dumping measures cannot deprive Zhejiang Xinan of anything it may ultimately gain as a result of the action which it brought against the contested regulation. Secondlyan orderin favour of Zhejiang Xinanpursuant to which the effects of the judgment under appeal would not be suspendedwould not exempt Zhejiang Xinan’s exports from a possible confirmation of the anti-dumping duties following the conclusion of the expiry review of those measures.

28 Furthermorethe Council argues that Zhejiang Xinan’s allegations that Article 278 TFEU applies to the present case without exception and that the second paragraph of Article 60 of the Statute of the Courtof Justice does not apply areinadmissible and irrelevant. Such allegationseven if well foundedwhich the Council disputeswould not serve to establish that the conditions necessary for the grant of the interim measure requested are met in the present case. In particularthey could not show that that measure is necessary to prevent Zhejiang Xinan from suffering imminent serious and irreparable harmthat is to say that it is urgent. Howeverin the absence of urgencythere is no basis which makes it possible for the President ofthe Court to prescribe interim measures.

29 The Commission submits that Zhejiang Xinan’s application is inadmissible for the same reasonsin essenceas those set out by the Council.

30 In the second placethe Council and the Commission submit that the arguments relied on in the application for interim measures fall far short of demonstrating that the well-established conditions for the grant of interim measures are met.

31 The Association des utilisateurs et distributeurs de l’agrochimie européenne (Audace) submitted its observations on 17 February 2010. Referring to considerable confusion and uncertainty in the European Union glyphosate marketit requests that the Court grant the order sought by Zhejiang Xinan and order the Council to pay the costs incurred by Audace in the interim proceedings.

The developments which took place in the course of the interim proceedings

32 On 13 December 2010the Council adopted Implementing Regulation (EU) No 1187/2010 terminating the anti-dumping proceeding on imports of glyphosate originating in the People’s Republic of China (OJ 2010 L 332p. 31). Article 1 of that regulation provides:

‘The anti-dumping measures concerning imports of glyphosate … originating in the People’s Republic of Chinaare hereby repealed and the proceedingconcerning these imports is terminated.’

33 By letter of 21 December 2010the Council drew the Court’s attention to the adoption of that regulation. In that letterthe Council submits thatin view of that new legal factthe application for interim measures has become devoid of purpose.

34 By letter of 7 January 2011the Commission proceeded in the same way as the Council.

35 By letter of 12 January 2011 Zhejiang Xinan informed the Court that it intended to maintain its application for interim measures.

36 After having been requested to do so by the CourtZhejiang Xinan statedby letter of 18 February 2011the reasons whichin its submissionjustify the maintenance of its application for interim measures.

37 The Council and the Commission submitted their observations in that regard on 1 March and 28 February 2011 respectively.

38 Audace submitted its observations on 3 March 2011dwellingas did Zhejiang Xinanon the reasons justifying the maintenance of Zhejiang Xinan’s application for interim measures.

Consideration of the application for interim measures

39 It must be pointed out thataccording to the express statements contained in the application for interim measures lodged by Zhejiang Xinanthe suspensory effect of the appeal lodged by the Council against the judgment under appeal has the consequence in practice of undermining Zhejiang Xinan’s entry into the European Union glyphosate market or even of preventing it from properly carrying out its business operations in that market and requiring it to participate in the review procedure.

40 Howeverfollowing the adoption of Regulation No 1187/2010those consequences are no longer relevant and Zhejiang Xinan no longer relies on them in its observations submitted to the Court on 18 February 2011.

41 Firstthat regulation clarified the situation of the European Union glyphosate market by repealing the anti-dumping measures concerning imports of glyphosate originating in Chinawith the result that Zhejiang Xinan is once and for all able to carry out its activities in a situation of legal certainty.

42 Secondlythat regulation terminated the review procedurewith the result that the alleged obligation on the part of Zhejiang Xinan to participate in that procedure and the risks which it put forward relating to such a participation no longer exist.

43 In its observations of 18 February 2011Zhejiang Xinan merely claims that the question whether the Council can review an anti-dumping regulation in relation to an undertaking with regard to which that regulation has been annulled by the General Court is of critical interest to the undertakings which mayin the futureapproach the Court of Justice in similar circumstances. It adds that a response on the part of the Court of Justice to its application for interim measures will constitute a precedentwhich will be likely to guide the conduct of the institutions and of undertakings and contribute to the clarification of the provisions of the Statute of the Court of Justice.

44 Such considerations of a general natureor even the interest in the resolution of legal questions which might be raised in the future in cases similar to that which gave rise to the present application for interim measurescannot suffice to justify the maintenance of that application.

45 The purpose of the procedure for interim relief is to guarantee the full effectiveness of the definitive future decisionin order to ensure that there is no lacuna in the legal protection provided by the Court of Justice (order of the President of the Court in Case C‑7/04 P(R) Commission v Akzo and Akcros [2004] ECR I-8739paragraph 36).

46 In the present caseas the Commission pointed out in its observations submitted to the Court of Justice on 28 February 2011the present application for interim measures can have no relevance to ensuring the effectiveness of the General Court’s annulment of the contested regulation if the appeal is dismissed by the Court of Justicesince the entire anti-dumping procedure concerning glyphosate from China has in the meantime been terminated by Regulation No 1187/2000 and the anti-dumping duties concerned have been repealed.

47 LastlyZhejiang Xinan states thatnotwithstanding the fact that the review procedure has been terminatedthe Commission may initiate a further investigation at any timeinter alia following a new complaint made to it. Accordinglythe urgency and the risk of serious and irreparable harm remain valid.

48 In that regardit is sufficient to point out thatin addition to the fact that such a risk appears to be purely hypotheticalit could be assessed only after the initiation of a possible further review procedure by taking into consideration the facts existing at the time when such a review was carried out and those facts are not known nor even foreseeable at present.

49 It follows from all of the above considerations that there is no longer any need to adjudicate on the present application for interim measures.

On those groundsthe President of the Court hereby orders:

1. There is nolonger any need to adjudicate on the application for interim measures lodged by Zhejiang Xinan Chemical Industrial Group Co. Ltd.

2. The costs are reserved.

[Signatures]