Judgment of the General Court (Fifth Chamber) of 28 February 2017 — JingAo Solar and Others v Council

(Case T‑157/14)

(Dumping — Imports of crystalline silicon photovoltaic modules and key components (cells) originating in or consigned from China — Definitive anti-dumping duty — Undertakings — Action for annulment — Interest in bringing proceedings — Admissibility — Exporting country — Scope of the investigation — Sampling — Normal value — Definition of the product concerned — Time limit for the adoption of a decision on a market economy treatment claim — Temporal application of new provisions — Injury — Causal link)

1. Actions for annulment — Natural or legal persons — Admissibility criteria — Regulation imposing anti-dumping duties — Action by an undertaking whose undertakings accepted in the regulation forming the subject-matter of the action — Admissibility (Art. 263, fourth para., TFEU; Council Regulation No 1225/2009, Arts 8(1) and (6), and 9(4)) (see paras 42-45, 47)

2. Actions for annulment — Natural or legal persons — Interest in bringing proceedings — Interest in making a plea — Need for an actual and current interest — Assessment at the time when the action was lodged — No plea capable of procuring a benefit for the applicant — Inadmissibility (Art. 263, fourth para., TFEU) (see paras 65-75)

3. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from non-market economy countries — Reference to the price of a third country with a market economy — Conditions — Discretion of the institutions — Scope (Council Regulation No 1225/2009, Art. 1(2) and (3), and 2(7)(a)) (see paras 85-95)

4. International agreements — Agreement establishing the World Trade Organisation — GATT 1994 — Not possible to invoke WTO agreements to challenge the legality of an EU measure — Exceptions — No EU measure designed to ensure implementation thereof (Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade of 1994, ‘1994 Anti-dumping Agreement’, Art. 2; Council Regulation No 1225/2009, Art. 2(7)) (see para. 96)

5. Common commercial policy — Protection against dumping — Investigation — Definition of the product concerned — Factors capable of being taken into account — Application of the criteria selected by the institutions — Judicial review — No manifest error of assessment (Council Regulation No 1225/2009, Art. 1(4)) (see paras 110-140)

6. EU law — Interpretation — Methods — Interpretation of a measure of secondary law — Interpretation contrary to its wording and the intention of the legislature — Not permissible (European Parliament and Council Regulation No 1168/2012, Arts 1, point 1(a), and 2) (see paras 151-154)

7. Acts of the institutions — Temporal application — Procedural rules — Substantive rules — Distinction — Temporal application of Regulation No 1168/2012, amending basic Regulation No 1225/2009 — Amendment of the time-limit for ruling on the status of company operating in a market economy — Application to investigations in progress — Lawfulness (European Parliament and Council Regulation No 1168/2012, Arts 1, point 1(a), and 2) (see paras 156-162)

8. Common commercial policy — Protection against dumping — Dumping margin — Determination of the normal value — Imports from non-market economy countries — Procedure for assessing the conditions enabling a producer to benefit from market economy treatment — Commission exceeding the time-limit laid down in that regard — Consequences (Council Regulation No 1225/2009, Art. 2(7)(c)) (see paras 165-172)

9. EU law — Principles — Protection of legitimate expectations — Legal certainty — Limits — Adoption of an EU measure likely to affect the interests of an economic operator — Prudent and circumspect operator capable of predicting the adoption of that measure — Not possible to rely on those principles (European Parliament and Council Regulation No 1168/2012) (see paras 177, 178)

10. Common commercial policy — Protection against dumping — Injury — Establishing a causal link — Obligations of the institutions — Taking into account of matters extraneous to the dumping — Relevance of such factors for establishing the causal link (Council Regulation No 1225/2009, Art. 3(1), (2), (5) to (7)) (see paras 186-192, 205-208)

11. Common commercial policy — Protection against dumping — Fixing of anti-dumping duties — Discretion of the institutions — Taking into account of matters extraneous to the dumping — Relevance of such factors for fixing anti-dumping duties — Judicial review — Limits (Council Regulation No 1225/2009, Arts 3(7), and 9(4)) (see paras 193-200, 203, 208-226)

Re:

APPLICATION under Article 263 TFEU for the annulment of Council Implementing Regulation (EU) No 1238/2013 of 2 December 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China (OJ 2013 L 325, p. 1), in so far as it applies to the applicants.

Operative part

The Court:

1. Dismisses the action;

2. Orders JingAo Solar Co. Ltd, and the other applicants whose names appear in the annex to bear their own costs and to pay those incurred by the Council of the European Union;