ORDER OF THE COURT (Ninth Chamber)

10 March 2016 ( )

[Text rectified by order of 12 September 2016]

(Appeals — Article 181 of the Rules of Procedure of the Court — Article 263 TFEU — Criterion for direct concern — Appeal manifestly unfounded — Dumping — Imports of crystalline silicon photovoltaic modules and key components (cells and wafers) originating in or consigned from China — Regulation (EC) No 1225/2009 — Article 8 — Offer of a price undertaking by Chinese exporting producers — Acceptance by the Commission — Exemption of anti-dumping duties — Action against the acceptance decision — Inadmissibility)

In Case C‑142/15 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 24 March 2015,

SolarWorld AG, established in Bonn (Germany), represented by L. Ruessmann, avocat, and J. Beck, Solicitor,

appellant,

the other parties to the proceedings being:

Brandoni solare SpA, established in Castelfidardo (Italy),

Global Sun Ltd, established in Sliema (Malta),

Silicio Solar, SAU, established in Madrid (Spain),

Solaria Energia y Medio Ambiente, SA, established in Puertollano (Spain),

represented by L. Ruessmann, avocat, and J. Beck, Solicitor,

applicants at first instance,

European Commission, represented by J.-F. Brakeland, T. Maxian Rusche and A. Stobiecka-Kuik, acting as Agents,

defendant at first instance,

THE COURT (Ninth Chamber),

composed of C. Lycourgos, President of the Chamber, C. Vajda and K. Jürimäe (Rapporteur), Judges,

Advocate General: P. Mengozzi,

Registrar: A. Calot Escobar,

having regard to the decision taken, after hearing the Advocate General, to give a decision on the action by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,

makes the following

Order

1 By its appeal, SolarWorld AG asks the Court to set aside the order of the General Court of the European Union of 14 January 2015 in SolarWorld and Others v Commission (T‑507/13, EU:T:2015:23, ‘the order under appeal’) by which the General Court dismissed, as inadmissible, the appellant’s action for the annulment of Commission Decision 2013/423/EU of 2 August 2013 accepting an undertaking offered in connection with the anti-dumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the People’s Republic of China (OJ 2013 L 209, p. 26, ‘the decision at issue’).

Legal context

2 Article 8(1) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51) provides:

‘Upon condition that a provisional affirmative determination of dumping and injury has been made, the Commission may accept satisfactory voluntary undertaking offers submitted by any exporter to revise its prices or to cease exports at dumped prices, if, after specific consultation of the Advisory Committee, it is satisfied that the injurious effect of the dumping is thereby eliminated. In such a case and as long as such undertakings are in force, the provisional duties imposed by the Commission in accordance with Article 7(1) or the definitive duties imposed by the Council in accordance with Article 9(4) as the case may be shall not apply to the relevant imports of the product concerned manufactured by the companies referred to in the Commission decision accepting undertakings, as subsequently amended. ...’

Background to the dispute

3 The appellant is a European producer of crystalline silicon photovoltaic modules and key components.

4 Following a complaint lodged with the European Commission on 25 July 2012 by EU ProSun, an association of European producers of similar products, the Commission published on 6 September 2012 in the Official Journal of the European Union a Notice of initiation of an anti-dumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in the People’s Republic of China (OJ 2012 C 269, p. 5). The appellant cooperated in that proceeding.

5 By Regulation (EU) No 513/2013 of 4 June 2013 imposing a provisional anti-dumping duty on imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the People’s Republic of China and amending Regulation (EU) No 182/2013 making these imports originating in or consigned from the People’s Republic of China subject to registration (OJ 2013 L 152, p. 5; ‘the provisional regulation’), the Commission imposed a provisional anti-dumping duty on imports into the European Union of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the People’s Republic of China.

6 On 2 August 2013, the Commission adopted the decision at issue. By that decision, and in particular by Article 1 of the decision, the Commission accepted an offer of an undertaking made by a group of Chinese exporting producers that had cooperated in the proceeding. According to recitals 5 and 6 of the decision, those exporting producers undertook to respect the minimum import price and to ensure that the volume of imports made under that undertaking does not exceed annual levels corresponding roughly to their market performance at the date the undertaking was made.

7 Commission Regulation (EU) No 748/2013 of 2 August 2013 amending Regulation No 513/2013 (OJ 2013 L 209, p. 1) was adopted to take account of the decision at issue. It inserted, inter alia, Article 6 in the provisional regulation, which provides that imports of the product concerned which are invoiced by companies from which undertakings have been accepted by the Commission and whose names are listed in the annex to the decision at issue are to be exempted from the provisional anti-dumping duty imposed by Article 1 of that regulation.

8 On 4 December 2013, the Commission adopted Implementing Decision 2013/707/EU confirming the acceptance of an undertaking offered in connection with the anti-dumping and anti-subsidy proceedings concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China for the period of application of definitive measures (OJ 2013 L 325, p. 214). That decision was made following an alteration by the relevant Chinese exporting producers of the initial undertaking they had offered.

9 A definitive anti-dumping duty was imposed by 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, ‘the definitive regulation’). Under Article 3(1) of that regulation, imports of the product concerned which are invoiced by companies from which undertakings have been accepted by the Commission are to be exempt, subject to certain conditions, from the anti-dumping duty imposed by Article 1 of the regulation.

The proceedings before the General Court and the order under appeal

10 By application lodged at the Registry of the General Court on 23 September 2013, the appellant and the applicants at first instance brought an action for annulment of the decision at issue. In support of their action, they relied, first, on infringement of the right to a fair hearing, of the principle of sound administration, of the rights of the defence and of Articles 8(4) and 19(2) of Regulation No 1225/2009, in so far as the Commission failed to disclose the key terms of the undertaking under discussion and failed to give an opportunity for submitting comments on that undertaking, second, on a manifest error of assessment and infringement of Articles 6(1) and 8(1) of that regulation, in so far as the minimum import prices set out in the undertaking were manifestly insufficient for removing the injury to EU producers and, third, on infringement of Article 101(1) TFEU, in so far as the decision at issue accepted and reinforced a horizontal price agreement.

11 By letter lodged at the Court Registry on 11 December 2013, the appellant and the applicants at first instance asked the General Court to grant leave to adapt the action for annulment so that the annulment order sought would also include Implementing Decision No 2013/707.

12 By the order under appeal, the General Court dismissed the action and the adaptation of the form of order as inadmissible.

Forms of order sought by the parties

13 By its appeal, the appellant claims that the Court should:

– declare the appeal admissible and well founded;

– set aside the order under appeal;

– declare the action for annulment in Case T‑507/13 to be admissible; and

– refer the case back to the General Court for a decision on the substantive merits of the action for annulment.

14 The Commission contends that the Court should:

– dismiss the appeal, and

– order the appellant to pay the costs.

The appeal

15 Under Article 181 of the Rules of Procedure of the Court of Justice, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss the appeal in whole or in part without opening the oral procedure.

16 It is appropriate to apply that provision to the present case.

Arguments of the parties

17 In support of its appeal, the appellant relies on a single ground of appeal alleging an error of law by the General Court in the assessment of the criterion of direct concern within the meaning of the fourth paragraph of Article 263 TFEU.

18 By the first limb of the single ground of appeal, the appellant claims that, in paragraphs 46 to 48 and 58 of the order under appeal, the General Court implicitly recognised that the appellant was directly affected by the exemption from anti-dumping duties of the Chinese exporting producers that had offered a price undertaking, whilst considering that that exemption did not follow from the decision at issue but from the provisions of Regulation No 748/2013 or the definitive regulation.

19 Nevertheless, the General Court failed to have regard to the confirmatory nature of Regulation No 748/2013. The Commission was under a legal obligation to adopt that regulation and had no scope for manoeuvre, as is clear from Article 8(1) of Regulation No 1225/2009, which the General Court recognised in paragraph 51 of the order under appeal.

20 By the second limb of the single ground of appeal, the appellant submits that whilst the General Court stated, in paragraph 40 of the order under appeal, that lack of discretion is a criterion which must be examined in order to determine whether the condition that an applicant must be directly affected has been satisfied, it was wrong in finding, in paragraphs 60 and 61 of that order, that that condition was not satisfied. Although the decision at issue necessitated implementing measures, the EU institutions had no discretion in the matter, which the General Court recognised in paragraph 51 of the order.

21 The Commission contends that the single ground of appeal is unfounded.

Findings of the Court

22 As a preliminary point, it should be recalled that the condition according to which a natural or legal person must be directly affected by the decision forming the subject matter of the action, as provided for in the fourth paragraph of Article 263 TFEU, requires two cumulative criteria to be met, namely that the measure at issue, first, must directly affect the legal situation of the individual and, second, it must leave no discretion to the addressees entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules without the application of other intermediate rules (see order in Northern Ireland Department of Agriculture and Rural Development v Commission, C‑248/12 P, EU:C:2014:137, paragraph 21 and the case-law cited).

23 As regards the first limb of the single ground of appeal, it should be noted, first, that the argument according to which the General Court implicitly recognised, in paragraphs 46 to 48 and 58 of the order under appeal, that the appellant was directly affected by the exemption from anti-dumping duties of the Chinese exporting producers that had offered a price undertaking is based on a misunderstanding of that order.

24 In paragraphs 46 to 52 of the order, the General Court sought to establish that an overall assessment of Regulation No 1225/2009 led to the conclusion that a decision accepting an undertaking, such as the decision at issue, was not capable of producing legal effects such as to affect directly the situation of the EU producers of the products concerned.

25 In paragraphs 46 and 47 of the order under appeal, the General Court set out, in essence, the wording of Article 8(1) of that regulation and relied on the case-law of the Court, according to which the Commission has the power to accept satisfactory voluntary undertaking offers submitted by any exporter to revise its prices in order to ensure that the products concerned are not exported at dumped prices if it is satisfied that the injurious effect of the dumping is eliminated as a result of the undertaking (judgment in Usha Martin v Council and Commission, C‑552/10 P, EU:C:2012:736, paragraph 22).

26 In paragraphs 48 to 52 of the order under appeal, the General Court analysed certain relevant provisions of Regulation No 1225/2009, from which it deduced that it was not because of the decision accepting undertakings that the imports covered by those undertakings were exempted from anti-dumping duties, but that the exemption stemmed from the provisions adopted, either by the Commission in the provisional regulation, or by the Council of the European Union in the definitive regulation, in order to implement the undertakings accepted by the Commission. In paragraph 48 of the order under appeal, the General Court referred, inter alia, to Article 9(5) of Regulation No 1225/2009. In paragraph 49 of the order under appeal, the General Court concluded that, even if a decision accepting undertakings had been adopted, the provisional or definitive anti-dumping duties were to be imposed, under Article 14(1) of the regulation, only by regulation.

27 Having dismissed, in paragraphs 53 to 57 of the order under appeal, the other arguments of the appellant and of the applicants at first instance, the General Court found, in paragraph 58 of that order, that it had not been shown that the decision at issue directly affected their legal situation but that they could still raise those arguments in an action for the annulment of the provisional or definitive regulation ‘to the extent that they have standing to bring proceedings’.

28 It is therefore in no way apparent from paragraphs 46 to 48 and 58 of the order under appeal that the General Court implicitly recognised that the appellant was directly affected by the exemption from anti-dumping duties of the Chinese exporting producers that had offered a price undertaking. On the contrary, it is clear from paragraph 58 of that order that the appellant and the other applicants at first instance could still contest those price undertakings on the basis of an action for annulment of the provisional or definitive regulation ‘to the extent that they have standing to bring proceedings’. The General Court thus sought to state that it was in no way prejudicing the outcome of an assessment of the admissibility to be made in connection with such an action.

29 It follows that the argument that the General Court implicitly recognised that the appellant was directly affected by the exemption from anti-dumping duties of the Chinese exporting producers that had offered a price undertaking must be disregarded as manifestly unfounded.

30 Second, as regards the argument that the General Court failed to have regard to the confirmatory nature of Regulation No 748/2013, it should be noted that, in the light of the relevant case-law of the Court, that regulation cannot be regarded as confirming the decision at issue. According to that case-law, a measure which contains no new factor as compared with a previous measure constitutes a purely confirmatory measure (judgment in Commission v Fernández Gómez, C‑417/05 P, EU:C:2006:582, paragraph 46).

31 [Rectified by order of 12 September 2016] The decision at issue and Regulation No 748/2013 are two measures of a fundamentally different nature. As appears from Article 1 of the decision at issue, that decision concerns companies that offered an undertaking, on the basis of Article 8 of Regulation No 1225/2009, and is intended to accept such an offer. By contrast, Regulation No 748/2013 is a measure of general application which is intended to amend the provisional regulation in order to exempt imports of the product concerned where those imports concern products invoiced by the companies from which undertakings have been accepted by the Commission. Regulation No 748/2013 cannot therefore be regarded as containing no new factor as compared with the decision at issue, as required by the case-law set out in paragraph 30 above.

32 Furthermore, in the light of that case-law, the fact, relied on by the appellant, that the Commission was legally obliged to adopt Regulation No 748/2013 and had no scope for manoeuvre, as allegedly appears from Article 8(1) of Regulation No 1225/2009 and from paragraph 51 of the order under appeal, is irrelevant for establishing the confirmatory nature of Regulation No 748/2013.

33 It follows from the foregoing that the argument as to the confirmatory nature of Regulation No 748/2013 and the first limb of the single ground of appeal, as a whole, must be dismissed as manifestly unfounded.

34 As regards the second limb of the single ground of appeal alleging that the General Court failed to take into account the lack of discretion of the EU institutions in assessing the criterion for direct concern, it must be pointed out that, in accordance with settled case-law, where one of the grounds adopted by the General Court is sufficient to sustain the operative part of its judgment, any defects that might vitiate other grounds given in the judgment concerned have, in any event, no bearing on that operative part and, accordingly, a plea relying on such defects is ineffective and must be dismissed (see, inter alia, judgments in Commission v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraph 68, and United Kingdom v Commission, C‑416/11 P, EU:C:2012:761, paragraph 45).

35 As the Commission stated in its pleadings, it is true that the appellant’s arguments suffer from a certain lack of clarity in so far as it is difficult to determine with certainty whether, by the first limb of the single ground of appeal, the appellant wishes to contest the General Court’s assessment of the criterion of lack of discretion or its assessment of the lack of implementing measures. Nonetheless, as follows from paragraphs 24 to 27 and 30 above, the General Court found, in the order under appeal, that the decision at issue did not directly affect the appellant’s legal situation, and that finding has not been successfully called into question by the appellant.

36 In those circumstances, whatever the exact meaning of the appellant’s arguments, such an error of law by the General Court would, in any event, have had no effect on the outcome of the action at first instance and thus would have had no bearing on the operative part of the order under appeal. As is clear from the wording of the fourth paragraph of Article 263 TFEU and the case-law set out in paragraph 22 above, the fact that the decision at issue does not directly affect the appellant’s legal situation is sufficient to establish that the criterion of direct concern has not been satisfied and that the appeal is inadmissible.

37 Consequently, this limb of the single ground of appeal and the appeal as a whole must be dismissed as manifestly unfounded.

Costs

38 Under Article 138(1) of the Rules of Procedure of the Court, which applies to appeal proceedings by virtue 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. Since the Commission has applied for costs and the appellant has been unsuccessful, it must be ordered to pay the costs.

On those grounds, the Court (Ninth Chamber) hereby orders:

1. The appeal is dismissed.

2. SolarWorld AG shall pay the costs.

[Signatures]