CELEX: 62015CO0142
Language: en
Date: 2016-03-10 00:00:00
Title: Order of the Court (Ninth Chamber) of 10 March 2016.#SolarWorld AG v European Commission.#Appeal — 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.#Case C-142/15 P.

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]
      * Language of the case: English.