Case C-511/13 P: Appeal brought on 23 September 2013 by Philips Lighting Poland S.A., Philips Lighting BV against the judgment of the General Court (Fifth Chamber) delivered on 11 July 2013 in Case T-469/07: Philips Lighting Poland S.A., Philips Lighting BV v Council of the European Union
Date: 2013-09-23
Institutions: Court of Justice
Subjects: EU industrial policy, European undertaking, dumping, interpretation of the law, production quota








C_2013352EN.01000901.xml










30.11.2013   


EN


Official Journal of the European Union


C 352/9





Appeal brought on 23 September 2013 by Philips Lighting Poland S.A., Philips Lighting BV against the judgment of the General Court (Fifth Chamber) delivered on 11 July 2013 in Case T-469/07: Philips Lighting Poland S.A., Philips Lighting BV v Council of the European Union
(Case C-511/13 P)
2013/C 352/16
Language of the case: English

Parties


Appellants: Philips Lighting Poland S.A., Philips Lighting BV (represented by: M.L. Catrain González, abogada, E.A. Wright, H. Zhu, Barristers)

Other parties to the proceedings: Council of the European Union, Hangzhou Duralamp Electronics Co., Ltd, GE Hungary Ipari és Kereskedelmi Zrt. (GE Hungary Zrt), European Commission, Osram GmbH

Form of order sought

The Appellants claim that the Court should:






—


set aside the judgment and annul the Contested Regulation in so far as it applies to the Appellants;










—


order the Council to pay the Appellants’ costs both before the General Court and in connection with the present proceedings.





Pleas in law and main arguments

By the present appeal, the Appellants request that the Judgment be set aside and the Contested Regulation be annulled on the grounds that:






1.


The General Court wrongly interpreted Article 9(1) of the Council Regulation (EC) No 384/96 of 22 December 1995 (1) (the ‘basic regulation’) (‘Article 9(1)’) when concluding that the Council is entitled to apply Article 9(1) a fortiori to situations that fall outside the scope of application of that provision (i.e., where there is no withdrawal of a complaint, but rather support for the complaint merely falls). The General Court’s expansive interpretation of Article 9(1) is not supported by either the wording or the scheme of the provisions of the basic regulation. It is also contradicted by the Institutions’ practice in the last 25 years during which reliance on Article 9(1), following the withdrawal of a complaint, has always triggered the termination of the related investigation.










2.


The General Court committed an error of law by misinterpreting, and therefore misapplying, Articles 4(1) and 5(4) of the basic regulation (‘Articles 4(1) and Article 5(4)’) when defining the ‘Community industry’. This led to the incorrect conclusion that a ‘major proportion’ of total Community production must be determined through application of only one of the two thresholds required by Article 5(4), the 25 % threshold only. The erroneous definition of the ‘Community industry’ vitiated the Institutions’ injury analysis which, instead of being determined on the basis of the effect of the dumped imports on the ‘Community industry’ as set out in Article 3(1) of the basic regulation (‘Article 3(1)’), and defined in Article 5(4) was assessed on the basis of the situation of the ‘supporting company’ or ‘the largest producer’. Neither of these terms is used in the basic regulation for the purpose of determining ‘injury’.






(1)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community, OJ L 56, p. 1