ORDER OF THE PRESIDENT OF THE COURT

17 October 2011 ( )

(Appeal – Intervention – Interest in the result of the case)

In Case C‑2/11 P(I),

APPEAL under Article 57 of the Statute of the Court of Justice of the European Union, lodged on 3 January 2011 (received by fax on 31 December 2010),

Lück GmbH & Co KG, established in Bocholt (Germany),

Sandler AG, established in Schwarzenbach/Saale (Germany),

Gesamtverband der Deutschen Textil- und Modeindustrie eV, established in Eschborn (Germany),

represented by Y. Melin, avocat, F. Crespo, advogada, and J. Beck, Solicitor,

appellants,

the other parties to the proceedings being:

Huvis Corp., established in Seoul (South Korea), represented by J.-F. Bellis, F. Di Gianni and R. Antonini, avocats,

applicant at first instance,

Council of the European Union, represented by B. Driessen, acting as Agent, assisted by G. Berrisch, Rechtsanwalt,

defendant at first instance,

European Commission, represented by H. van Vliet and M. França, acting as Agents, with an address for service in Luxembourg,

intervener at first instance,

THE PRESIDENT OF THE COURT,

after hearing the Advocate General, Y. Bot,

makes the following

Order

1 By their appeal, the appellants, Lück GmbH & Co KG (‘Lück’), Sandler AG (‘Sandler’) and Gesamtverband der Deutschen Textil- und Modeindustrie eV (‘Gesamtverband’), seek the setting-aside of the order of 14 December 2010 of the President of the Eighth Chamber of the General Court of the European Union in Case T‑536/08 Huvis v Council (‘the order under appeal’) dismissing their applications for leave to intervene in support of the form of order sought by the applicant at first instance in Case T‑536/08, which concerns an application for annulment of Council Regulation (EC) No 893/2008 of 10 September 2008 maintaining the anti-dumping duties on imports of polyester staple fibres originating in Belarus, the People’s Republic of China, Saudi Arabia and Korea following a partial interim review pursuant to Article 11(3) of Regulation (EC) No 384/96 (OJ 2008 L 247, p. 1; ‘the contested regulation’).

2 In addition, the appellants request the President of the Court to accept their applications for leave to intervene or to refer the case back to the President of the Eighth Chamber of the General Court.

3 The applicant in the main proceedings, Huvis Corp. (‘Huvis’), the Council of the European Union and the European Commission lodged their observations on the appeal on 31 January, and 2 and 1 February 2011, respectively.

4 Pursuant to the third paragraph of Article 57 of the Statute of the Court of Justice of the European Union, the appeal is to be heard and determined under the procedure referred to in Article 39 of the Statute.

The appeal

5 In support of their appeal, the appellants raise two grounds of appeal alleging, respectively, breach of the second paragraph of Article 40 of the Statute of the Court and distortion of the facts and clear sense of the evidence.

The first ground of appeal

6 The appellants and Huvis claim that the order under appeal is based on an erroneous interpretation of the concept of an ‘interest in the result of the case’ for the purpose of the second paragraph of Article 40 of the Statute of the Court, because the Judge at first instance held that in order to demonstrate that they had such an interest, they had to establish that Lück and Sandler were importers and users of polyester staple fibres, goods covered by the anti-dumping duties imposed by the contested regulation, or importers of the goods from the applicant undertaking at first instance.

7 The appellants and Huvis submit that a user is affected to a much more significant degree than importers by the measures imposed by the contested regulation. Importers that are not users as well will simply pass on import duties to their customers, which will increase the price of the product on the Union’s market. Users will see the price of their raw material increase by the amount of the import duties, which will reduce their competitiveness. That, as the appellants submit, is true whether users import the products directly or not.

8 Moreover, as they submit, the interest of parties who are users is confirmed by the fact that they are entitled to cooperate in anti-dumping investigations as ‘interested parties’, such cooperation not being limited to importers alone. Anti-dumping duties are paid by the importers, but, in the final account, the cost of those duties is transferred to users of the goods in question for downstream production.

9 In that regard, under the second paragraph of Article 40 of the Statute of the Court, the right to intervene in a case submitted to the Court is open to natural or legal persons only if they establish an interest in the result of that case and provided that the case does not come within the exceptions laid down in that provision.

10 According to settled case-law, the concept of ‘an interest in the result of a case’, within the meaning of the second paragraph of Article 40 of the Statute of the Court, must be defined in the light of the precise subject-matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the forms of order sought (order of the President of the Court of 6 April 2006 in Case C‑130/06 P(I) An Post v Deutsche Post and Others, paragraph 8). In that regard, it should be ascertained in particular whether the intervener is directly affected by the contested measure and whether his interest in the result of the case is established (see, to that effect, the order of the President of the Court of 25 January 2008 in Case C‑461/07 P(I) Provincia di Ascoli Piceno and Comune di Monte Urano v Council, paragraph 5).

11 Where, as here, the case concerns the validity of a regulation imposing an anti-dumping duty, having regard to the nature and content of that regulation, undertakings which are required to pay a specific anti-dumping duty and undertakings which import the goods covered by the contested regulation and which must, under that regulation, pay a specific antidumping duty, have such an interest in the result of the case (see, to that effect, order in Case C‑245/95 P Commission v NTN and Koyo Seiko [1996] ECR I‑559, paragraph 15).

12 In this case, as the Judge at first instance observed in paragraph 15 of the order under appeal, the form of order sought by Huvis in its action for annulment seeks the annulment of the contested regulation in so far as it concerns Huvis and thus seeks to prevent the maintenance of the anti-dumping duty on the products in question of Huvis.

13 It follows that, in order to establish a direct, existing interest in the ruling on the form of order sought by Huvis, Lück and Sandler should have adduced evidence that they are importers or users of Huvis’s products.

14 It was held, correctly, in paragraph 16 of the order under appeal, that the appellants had not showed that. In fact, they relied on recitals 12 and 52 in the preamble to the contested regulation which state that they are importers and users of polyester staple fibres and that they absorb a proportion of the imports from the countries concerned by the contested regulation.

15 While that circumstance is evidence of a potential interest in the annulment of the contested regulation, it is clearly insufficient, however, to substantiate an existing, direct and established interest in the ruling on the form of order sought by the applicant.

16 It follows that the Judge at first instance did not fall into error of law in deciding that Lück and Sandler had not established an ‘interest in the result of the case’, for the purpose of the second paragraph of Article 40 of the Statute of the Court.

17 Consequently, the first ground of appeal must be rejected as unfounded.

The second ground of appeal

18 By their second ground of appeal, the appellants claim that the order under appeal is vitiated by erroneous assessment of the evidence and distortion of the facts on the ground that the Judge at first instance held, in connection with the determination as to Gesamtverband’s interest in the result of the case, that it had not been established that Gesamtverband represented a significant number of undertakings active in the sector concerned.

19 The appellants submit that it is clearly stated in recitals 12 and 53 in the preamble to the contested regulation that:

– Gesamtverband is the German federation of textile industries and represented both the German spinning and the non-woven sectors in the investigation which led to the adoption of the contested regulation;

– two of Gesamtverband’s members, IVGT and Verband der Deutschen Heimtextilien-Industrie eV, cooperated with the Commission in the investigation which led to the adoption of the contested regulation;

– no less than 10 companies cooperated fully with the Commission, and another 6 cooperated partially;

– the 10 users that cooperated fully, including Sandler and Lück, represent 12% of the total consumption of polyester staple fibres on the European market;

– all the users, the 10 that fully cooperated and the other 6 which did not cooperate fully, are members of Gesamtverband or of European Disposables and Nonwovens Association (EDANA), and represent 17% of total European consumption of polyester staple fibres and around 13% of imports from South Korea and China.

20 The appellants submit that since that factual evidence was set forth in the contested regulation, following a full investigation led by the Commission and concluded by the Council, it was not necessary for them to provide more evidence proving the same facts.

21 They conclude therefore that, in assessing that evidence, the Judge at first instance could not, without distorting the facts before him, decide that it had not been established that Gesamtverband represented a significant number of undertakings active in the sector concerned.

22 In that regard, according to settled case-law, under Article 225(1) EC and the first paragraph of Article 58 of the Statute of the Court, an appeal is limited to points of law, to the exclusion of any appraisal of the facts. The General Court, or where appropriate its President or the judge replacing him, thus has exclusive jurisdiction to assess the evidence. The assessment of that evidence thus does not, save where the facts and evidence are distorted, constitute a point of law which is subject, as such, to review by the Court, or where appropriate its President, on appeal (see, to that effect, Case C‑416/04 P Sunrider v OHIM [2006] ECR I‑4237, paragraph 49).

23 In addition, a distortion must be obvious from the documents on the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (see, in particular, Case C‑551/03 P General Motors v Commission [2006] ECR I‑3173, paragraph 54; judgment of 22 May 2008 in Case C‑266/06 P Evonik Degussa v Commission, paragraph 74; Joined Cases C‑101/07 P and C‑110/07 P Coop de France bétail et viande and Others v Commission [2008] ECR I‑10193, paragraph 60; and Case C‑535/06 P Moser Baer India v Council [2009] ECR I‑7051, paragraph 33).

24 In this case, the Judge at first instance noted, first, in paragraph 14 of the order under appeal, that according to settled case-law, intervention is permissible by representative associations whose object is to protect their members in cases raising questions of principle liable to affect those members (orders of the President of the Court in Joined Cases C‑151/97 P(I) and C‑157/97 P(I) National Power and PowerGen [1997] ECR I‑3491, paragraph 66, and Case C‑151/98 P Pharos v Commission [1998] ECR I‑5441, paragraph 6, and orders of the President of the General Court in Case T‑53/01 R Poste Italiane v Commission [2001] ECR II‑1479, paragraph 51, and of the General Court in Case T‑201/04 R Microsoft v Commission [2004] ECR II‑2977, paragraph 37).

25 Secondly, he also noted that an association may be granted leave to intervene in a case if it represents a significant number of undertakings active in the sector concerned, if its objects include the protection of the interests of its members, 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 significantly by the forthcoming judgment (orders of the General Court in Case T‑87/92 Kruidvat v Commission [1993] ECR II‑1375, paragraph 14, and in Case T‑253/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission [2004] ECR II‑1603, paragraph 21).

26 By examining, on the basis of the criteria of that case-law, the evidence furnished by the appellants to establish Gesamtverband’s interest in the result of the case, the Judge at first instance noted next, in paragraph 18 of the order under appeal, that the applicants for leave to intervene did not attach either the membership list of Gesamtverband or its statutes, or any other document attesting to the extent of its representativity or its object. As regards the evidence in recitals 12 and 53 in the preamble to the contested regulation relied upon by the appellants, the Judge at first instance found that they contained only very general information in that regard. In particular, he stated that no indication was given as to the share of the sector concerned accounted for by Gesamtverband’s members.

27 It must be observed that the reasoning of the Judge at first instance reveals no distortion whatever of the factual evidence relied upon by the appellants. Indeed, he was correct in finding that the evidence in recitals 12 and 53 in the preamble to the contested regulation relied upon by the appellants was very general and, on that ground, did not enable Gesamtverband’s representativity or its principal object to be established with certainty, since sound conclusions could have been reached in that regard if the appellants had simply provided the list of its members and its statutes.

28 It follows that the second ground of appeal must also be rejected as unfounded.

29 In those circumstances and in the light of all the above considerations, the present appeal must be dismissed.

On those grounds, the President of the Court hereby orders:

1. The appeal is dismissed.

2. Lück GmbH & Co KG, Sandler AG and Gesamtverband der Deutschen Textil- und Modeindustrie eV shall bear their own costs.

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