CELEX: 62011CO0003
Language: en
Date: 2011-10-17 00:00:00
Title: Order of the President of the Court of 17 October 2011. # Lück GmbH & Co KG, Sandler AG and Gesamtverband der Deutschen Textil- und Modeindustrie eV v Council of the European Union and Others. # Appeal - Intervention - Interest in the result of the case. # Case C-3/11 P(I).

ORDER OF THE PRESIDENT OF THE COURT
      17 October 2011 (*)
      
      (Appeal – Intervention – Interest in the result of the case)
      In Case C‑3/11 P(I),
      APPEAL under Article 57 of the Statute of the Court of Justice of the European Union, brought 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:
      Cixi Jiangnan Chemical Fiber Co. Ltd, established in Zhejiang (China),
      
      Cixi Santai Chemical Fiber Co. Ltd, established in Zhejiang,
      
      Cixi Sansheng Chemical Fiber Co. Ltd, established in Ningbo (China),
      
      Jiangyin Changlong Chemical Fibre Co. Ltd, established in Jiangyin (China),
      
      Ningbo Dafa Chemical Fiber Co. Ltd, established in Zhejiang,
      
      Xiake Color Spinning Co. Ltd, established in Jiangsu (China),
      
      Zhejiang Waysun Chemical Fiber Co. Ltd, established in Zhejiang,
      
      Zhejiang Anshun Pettechs Fibre Co. Ltd, established in Zhejiang,
      
      represented by J.-F. Bellis, avocat,
      applicants 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‑537/08 Cixi Jiangnan Chemical Fiber and Others v Council (‘the order under appeal’) dismissing their applications for leave to intervene in support of the form of order sought by
         the applicants at first instance in Case T‑537/08, 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 applicants in the main proceedings, Cixi Jiangnan Chemical Fiber Co. Ltd, Cixi Santai Chemical Fiber Co. Ltd, Cixi Sansheng
         Chemical Fiber Co. Ltd, Jiangyin Changlong Chemical Fibre Co. Ltd, Ningbo Dafa Chemical Fiber Co. Ltd, Xiake Color Spinning
         Co. Ltd, Zhejiang Waysun Chemical Fiber Co. Ltd and Zhejiang Anshun Pettechs Fibre Co. Ltd (‘Cixi and Others’), 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 Cixi and Others claim that the order under appeal is based on an erroneous interpretation of the concept
         of an ‘interest in the result of a 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 undertakings at first instance.
      
      7        The appellants and Cixi and Others 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 stated 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 Cixi and Others in their action for annulment seeks the annulment of the contested regulation in its entirety. They thus
         intend to challenge the Council’s decision to maintain the anti-dumping duties imposed on polyester staple fibres from the
         countries covered by the contested regulation.
      
      13      According to settled case-law, regulations imposing an anti-dumping duty, although by their nature and scope of a legislative
         nature, are liable to be of direct and individual concern to, among others, those producers and exporters who are able to
         establish that they were identified in the measures adopted by the Council or the Commission or were concerned by the preliminary
         investigations or, again, to those importers whose retail prices for the products in question form the basis of the constructed
         export price, where exporter and importer are associated (see, in particular, Case C‑239/99 Nachi Europe [2001] ECR I‑1197, paragraph 21).
      
      14      The Court has also stated that, where a regulation which introduces an anti-dumping duty imposes different duties on a series
         of undertakings, an undertaking is individually concerned only by those provisions which impose on it a specific anti-dumping
         duty and determine the amount thereof, and not by those provisions which impose anti-dumping duties on other undertakings;
         consequently, an action brought by that undertaking will be admissible only in so far as it seeks the annulment of those provisions
         of the regulation that exclusively concern it (see, in particular, Nachi Europe, paragraph 22). 
      
      15      Admittedly, as the Judge at first instance pointed out in paragraph 16 of the order under appeal, the question of whether
         an action for annulment is admissible need not be ruled on at the stage of examining applications for leave to intervene.
         However, that does not mean that the criteria for determining whether there is an ‘interest in the result of a case’ within
         the meaning of the second paragraph of Article 40 of the Statute of the Court are wholly unconnected to those relating, for
         the purposes of the fourth paragraph of Article 230 EC, to a natural or legal person’s interest in bringing proceedings against
         an act of the Union’s institutions.
      
      16      Thus, where, under the provisions applicable as interpreted by the case-law, applicants for the partial annulment of an act
         of the institutions may exercise that right only partially and strictly to the extent that they are concerned, the interest
         in the result of the case of any applicants for leave to intervene must, for the purposes of the second paragraph of Article
         40 of the Statute of the Court, be determined in similar fashion.
      
      17      It follows that, in the light of the settled case-law cited in paragraphs 12 and 13 of the present order, in an action for
         annulment of an anti-dumping regulation, an applicant for leave to intervene cannot establish an ‘interest in the result of
         a case’ within the meaning of the second paragraph of Article 40 of the Statute of the Court, unless he shows that the annulment
         of that regulation, as regards specifically anti-dumping duties imposed in respect of the goods of the applicant for annulment,
         will have an actual direct effect on his own interests.
      
      18      In this case, the Judge at first instance 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 to establish that
         they are importers and users of polyester staple fibres from the countries covered by the contested regulation. 
      
      19      However, even if the contested regulation were annulled as regards Cixi and Others’ goods, the simple fact that the appellants
         are importers or users of goods from those countries cannot suffice to establish that they would derive a direct, established
         benefit from such annulment.
      
      20      It follows that the conclusion of the Judge at first instance 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, was not erroneous.
      
      21      Consequently, the first ground of appeal must be rejected as unfounded.
      
       The second ground of appeal
      22      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.
      
      23      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.
      
      24      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.
      
      25      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.
      
      26      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).
      
      27      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).
      
      28      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). 
      
      29      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).
      
      30      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.
      
      31      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.
      
      32      It follows that the second ground of appeal must also be rejected as unfounded.
      
      33      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.
      [Signatures]
      * Language of the case: English