CELEX: 62016CC0204
Language: en
Date: 2017-06-01 00:00:00
Title: Opinion of Advocate General Tanchev delivered on 1 June 2017.

OPINION OF ADVOCATE GENERAL
TANCHEV
delivered on 1 June 2017(1)

Case C‑204/16 P

SolarWorld AG

v

Council of the European Union

(Appeal — Dumping — Imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China — Definitive duties — Undertaking — Admissibility — Partial annulment — Severability)

1.        By this appeal, SolarWorld AG (‘SolarWorld’) requests the Court to set aside the order of the General Court (2) by which the latter dismissed as inadmissible the action for the annulment of Article 3 of Council Implementing Regulation (EU) No 1238/2013 (‘the regulation at issue’). (3) Article 1 of the regulation at issue imposed a definitive anti-dumping duty on imports of crystalline silicon photovoltaic modules from China, while Article 3 of that regulation exempted from the duty imposed by Article 1 imports from companies that had undertaken to apply a minimum import price up to a certain annual volume of imports. In the order under appeal, the General Court found that Article 3 was not severable from the remainder of that regulation since the annulment of that provision alone would alter the substance of the regulation at issue. Consequently, it dismissed as inadmissible the action for the annulment of Article 3 alone.

2.        This appeal raises the question whether, where a regulation imposes an anti-dumping duty, then exempts from the payment of that duty the exporters whose offer of an undertaking has been accepted, annulment may be sought of the exemption alone. Should this be the case, and should the appeal succeed, the anti-dumping duty provided for by the regulation would be applicable to imports by the companies formerly parties to the undertaking. Should this not be the case, and should the appeal succeed, the regulation would be annulled in its entirety and the duty provided for by that regulation could no longer apply. It would be for the Commission to take the necessary measures in order to implement the judgment setting aside the order under appeal and, in particular, to assess whether a revised undertaking may be accepted or whether a duty may be imposed without any such exemption.
I.      Legal framework

3.        Article 7 of Council Regulation (EC) No 1225/2009 (4) provides:
‘1. Provisional duties may be imposed if proceedings have been initiated in accordance with Article 5, if a notice has been given to that effect and interested parties have been given adequate opportunities to submit information and make comments in accordance with Article 5(10), if a provisional affirmative determination has been made of dumping and consequent injury to the Community industry, and if the Community interest calls for intervention to prevent such injury. …
2. The amount of the provisional anti-dumping duty shall not exceed the margin of dumping as provisionally established, but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Community industry.
…’

4.        According to Article 8(1) of the basic regulation:
‘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, provisional duties imposed by the Commission in accordance with Article 7(1) or 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. Price increases under such undertakings shall not be higher than necessary to eliminate the margin of dumping and they should be less than the margin of dumping if such increases would be adequate to remove the injury to the Community industry.’

5.        Article 8(9) of the basic regulation states:
‘In case of breach or withdrawal of undertakings by any party to the undertaking, or in case of withdrawal of acceptance of the undertaking by the Commission, the acceptance of an undertaking shall, after consultation, be withdrawn by Commission Decision or Commission Regulation, as appropriate, and the provisional duty which has been imposed by the Commission in accordance with Article 7 or the definitive duty which has been imposed by the Council in accordance with Article 9(4) shall automatically apply, provided that the exporter concerned has, except where he himself has withdrawn the undertaking, been given an opportunity to comment.
…’

6.        Article 9(4) of the basic regulation provides:
‘Where the facts as finally established show that there is dumping and injury caused thereby, and the Community interest calls for intervention in accordance with Article 21, a definitive anti-dumping duty shall be imposed by the Council, acting on a proposal submitted by the Commission after consultation of the Advisory Committee. … The amount of the anti-dumping duty shall not exceed the margin of dumping established but it should be less than the margin if such lesser duty would be adequate to remove the injury to the Community industry.’
II.    Background to the proceedings

7.        On 6 September 2012, the Commission initiated an anti-dumping proceeding with regard to imports of crystalline silicon photovoltaic modules and key components originating in China. (5) That proceeding was initiated upon a complaint by EU Pro Sun, an association of European producers of crystalline silicon photovoltaic modules and key components.

8.        On 8 November 2012, the Commission initiated an anti-subsidy proceeding with regard to imports of crystalline silicon photovoltaic modules and key components originating in China. (6)

9.        On 4 June 2013, the Commission adopted Regulation (EU) No 513/2013, whereby a provisional anti-dumping duty was imposed on imports of the product concerned from China. (7) That provisional anti-dumping duty took the form of an ad valorem duty.

10.      The action for annulment of Regulation No 513/2013 brought by two European producers of crystalline silicon photovoltaic modules and key components, including SolarWorld, was dismissed by order of the General Court. (8) The appeal against that order was dismissed by order of the Court. (9)

11.      By letter of 27 July 2013 to the Commission, the China Chamber of Commerce for Import and Export of Machinery and Electronic Products (‘the CCCME’) and a group of exporting producers offered to give an undertaking, namely to apply a minimum import price (‘the minimum import price’) up to a certain annual volume of imports that corresponded to their market performance. An ad valorem duty would apply to imports above that volume. On 2 August 2013, the Commission adopted Decision 2013/423/EU, whereby it accepted that undertaking. (10) On the same day, the Commission adopted Regulation (EU) No 748/2013, (11) which modified Regulation No 513/2013 in order to take account of the acceptance of that undertaking.

12.      On 2 December 2013, the Council adopted the regulation at issue, whereby a definitive anti-dumping duty was imposed on imports of the product concerned from China. In Article 1 of the regulation at issue, the Council imposed an ad valorem duty. Article 2 provided that the amounts secured by way of the provisional duty pursuant to Regulation No 513/2013 were definitively collected. Article 3 exempted from the duty imposed by Article 1 the imports invoiced by companies from which an undertaking had been accepted and which were listed in the Annex to Commission Implementing Decision 2013/707/EU. (12)

13.      Decision 2013/707 was adopted by the Commission on 4 December 2013. In that decision, the Commission accepted the amended undertaking offered by the CCCME and a group of exporting producers (‘the undertaking’) for the period of application of the definitive anti-dumping duty. It accepted that undertaking in respect not only of the anti-dumping proceeding, but also of the anti-subsidy proceeding.

14.      On 2 December 2013, the Council adopted Regulation (EU) No 1239/2013, whereby it imposed a definitive countervailing duty on imports of the product concerned from China. (13) In Article 1, an ad valorem anti-subsidy duty was imposed. In Article 2, imports invoiced by companies from which an undertaking had been accepted by the Commission and whose names were listed in the Annex to Decision 2013/707 were exempted from that anti-subsidy duty.

15.      The action for the annulment of Decision 2013/423 and Decision 2013/707 was dismissed by order of the General Court. (14) The appeal against that order was dismissed by order of the Court. (15)

16.      By letter of 15 September 2014, the Commission accepted, in accordance with Clause 3.5 of the undertaking, the CCCME’s request for a downward adjustment of the minimum import price. On 16 February 2017, the General Court dismissed the action brought by SolarWorld for the annulment of the decision contained in the Commission’s letter of 15 September 2014. (16)
III. Proceedings before the General Court and order under appeal

17.      On 28 February 2014, SolarWorld and two other European producers of crystalline silicon photovoltaic modules and key components, namely Brandoni solare SpA (‘Brandoni solare’) and Solaria Energia y Medio Ambiente, SA (‘Solaria Energia’), brought an action for the annulment of Article 3 of the regulation at issue.

18.      By the order under appeal, the General Court dismissed the action as inadmissible.

19.      The General Court recalled that, according to settled case-law, partial annulment of a Union act is possible only if the elements of which the annulment is sought may be severed from the remainder of the act, that is, where the partial annulment of the act would not have the effect of altering its substance. In the present case, annulment was sought only of Article 3 of the regulation at issue. The annulment of Article 3 alone would result in the application of the anti-dumping duty to all imports consigned by the exporting producers whose offer of an undertaking had been accepted. This would confer a greater scope to the anti-dumping duty, since under the regulation at issue that duty applied only to imports consigned by the exporting producers which had not consented to the undertaking, and those imports corresponded to 30% of the total imports of the product concerned. Therefore, Article 3 could not be severed from the remainder of the regulation at issue. The action for the annulment of Article 3 alone was dismissed as inadmissible.

20.      Since the General Court dismissed the action on the ground that the annulment of Article 3 alone would have altered the substance of the regulation at issue, it did not consider the other ground of inadmissibility raised by the Council, namely that SolarWorld, Brandoni solare and Solar Energia had no standing to challenge Article 3 of the regulation at issue.
IV.    Proceedings before the Court of Justice and forms of order sought

21.      By appeal lodged on 11 April 2016, SolarWorld requests the Court to declare the appeal admissible and well founded, set aside the order under appeal, and either rule on the substance and annul Article 3 of the regulation at issue or refer the case back to the General Court. SolarWorld also requests the Court to order the Council to pay the costs.

22.      The Council requests the Court to dismiss the appeal and order SolarWorld to pay the costs of the appeal and of the proceedings before the General Court.

23.      The Commission requests the Court to dismiss the appeal as unfounded and to order SolarWorld to pay the costs.
V.      Assessment of the grounds of appeal

24.      SolarWorld puts forward two grounds of appeal. First, it submits that the General Court erred in law in finding that Article 3 of the regulation at issue is not severable from the remainder of that regulation. Second, it contends that, in dismissing its action as inadmissible, the General Court infringed Articles 47 and 20 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
A.      First ground of appeal

1.      Arguments of the parties

25.      By its first ground of appeal, SolarWorld submits that the General Court erred in law in finding, at paragraphs 53 to 60 of the order under appeal, and, in particular, at paragraphs 55 and 59 of that order, that Article 3 of the regulation at issue is not severable from the remainder of that regulation.

26.      First, SolarWorld argues that the minimum import price undertaking provided for by Article 3 of the regulation at issue as well as the ad valorem anti-dumping duties provided for by Article 1 of that regulation are two forms of anti-dumping measures. As such, they have the same purpose (to remove the injury suffered by the Union industry) and they must be set at a level at which they remove such injury. Therefore, replacing one anti-dumping measure (the undertaking) with another one (the duties) does not alter the substance of the regulation at issue. This is because the scope of that regulation is the imposition on all dumped imports of anti-dumping measures, irrespective of their form. As for the judgments cited at paragraph 57 of the contested order, they are not applicable to the present case since, in those judgments, partial annulment would have resulted in a material change in the scope of the act at issue, whereas, in the present case, partial annulment of the regulation at issue would only result in a change in the form of the anti-dumping measures imposed.

27.      Second, SolarWorld submits that the basic regulation itself provides for the substitution of one anti-dumping measure with another one of a different form. Article 8(9) of that regulation states that, where an undertaking is breached or withdrawn, or where its acceptance by the Commission is withdrawn, the anti-dumping duties imposed automatically apply.

28.      Third, SolarWorld stresses that, had the General Court annulled Article 3 of the regulation at issue on the ground that, as alleged by SolarWorld, the minimum import price was not set at a level which removes the injury suffered by the Union industry, this would not necessarily have resulted in the imposition of duties. The Commission and the Council could have complied with the judgment bringing about the annulment by accepting a revised minimum import price set at a level which removes injury.

29.      Fourth, SolarWorld maintains that it does not matter that the annulment of Article 3 of the regulation at issue alone would result in the imposition of the anti-dumping duties set out in Article 1 of that regulation to all dumped imports, whereas they previously applied to only 30% of those imports. This does not alter the scope of the regulation at issue, since the scope of that regulation is the imposition of anti-dumping measures on all dumped imports. Therefore, the percentage of dumped imports to which one specific form of anti-dumping measures applies is irrelevant.

30.      The Council contends that the first ground of appeal is inadmissible since, first, it merely reproduces a plea submitted to the General Court and, second, it is based on questions of fact which are not amenable to review by the Court, save where the clear sense of the evidence has been distorted, which SolarWorld has not alleged.

31.      As to the merits, the Council submits that the first ground of appeal must be rejected. First, SolarWorld’s distinction between anti-dumping measures and anti-dumping duties is artificial. Where the basic regulation refers to ‘measures’, it usually means duties, for instance in the titles of Articles 7 and 9. Second, the Council asserts that the annulment of Article 3 of the regulation at issue alone would result in the application of the anti-dumping duties set out in Article 1 of that regulation to all imports, whereas they previously applied only to imports above a certain annual volume, that is, only to part of the dumped imports. This would alter the substance of the regulation at issue. Third, the Council contends that without the duties, the undertaking could not be implemented. This is because the undertaking has a limited scope (it applies only up to a certain volume of imports, above which the duties apply). Fourth, in assessing the interest of the Union industry, the Council and the Commission took account of the effects of the minimum import price. Fifth, the duties were set at a level which, combined with the minimum import price, removes the injury suffered by the Union industry. Therefore, the regulation at issue relies on the combined effect of the duties and the undertaking on the economy. It is not certain that, without the undertaking, the Council would have imposed anti-dumping duties on all dumped imports.

32.      The Commission submits that the first ground of appeal is unfounded.

33.      First, it is irrelevant that the undertaking and the anti-dumping duties are both anti-dumping measures, and that, as such, they have the same purpose (to remedy the injury suffered by the Union industry). What matters is that replacing the former by the latter would alter the substance of the regulation at issue. This is because the undertaking and the duties were assessed as a whole with regard to the elimination of injury and to the Union interest. Moreover, an undertaking and anti-dumping duties have different effects. While the additional revenues from an undertaking are received by the exporter, the revenues of the duties are paid into the Union budget.

34.      Second, the Commission does not accept SolarWorld’s argument that the judgments cited at paragraph 57 of the contested order are not applicable to the present case. The Commission stresses that, in those judgments, partial annulment was denied, not because it would have resulted in material changes in the scope of the act at issue, but because it would have altered the substance of the act at issue. Similarly, in the present case, the General Court found that the annulment of Article 3 of the regulation at issue alone would alter the substance of that regulation. This was because the annulment of Article 3 alone would have extended the scope of the anti-dumping duties since they would apply to imports previously exempted. Contrary to what SolarWorld argues, the General Court did not find that partial annulment would alter the scope ofthe regulation at issue.

35.      According to the Commission, it cannot be argued that SolarWorld has no interest in seeking the annulment of the entire regulation at issue (since Article 1 of that regulation imposes duties on its Chinese competitors). This is because, in bringing an action for the annulment of the entire regulation, SolarWorld could have requested the suspension of the effects of the judgment until the competent institutions adopt the measures necessary to comply with that judgment (in other words, until those institutions re-adopt a regulation imposing anti-dumping duties). Seeking the annulment of Article 3 alone is, in the Commission’s words, a ‘litigation strategy error’ which cannot be remedied in the present proceedings.

36.      The Commission concludes that the General Court was right in holding that partial annulment could not be granted. Were the General Court to find that Article 3 of the regulation at issue is illegal, it could only annul that entire regulation and let the Council and the Commission decide which form of anti-dumping measures should be adopted in order to comply with its judgment. Only through the annulment of the entire regulation at issue could the institutional balance provided for in the Treaties be respected.

37.      The CCCME did not submit written observations. However, at the oral hearing, it agreed with the Council and the Commission that Article 3 of the regulation at issue is not severable from the remainder of that regulation.
2.      Assessment

(a)    Admissibility

38.      The Council contends that the first ground of appeal is inadmissible since, first, it merely reproduces the severability plea submitted to the General Court and, second, it is based on questions of fact which are not amenable to review by the Court.

39.      In my view, the plea of inadmissibility raised by the Council must be rejected.

40.      First, it is true that, in response to a plea of inadmissibility raised by the Council, SolarWorld argued at first instance that that provision was severable from the remainder of the regulation at issue. However, SolarWorld clearly indicates in its written submissions before the Court which points of the order under appeal are, in its view, vitiated by an error in law, in particular paragraph 55 (which pertains to the broader scope of the anti-dumping duties, should Article 3 alone be annulled), paragraph 57 (in which the General Court examines earlier judgments concerning the severability requirement) and paragraph 59 (in which the General Court concludes that Article 3 is not severable from the remainder of the regulation at issue). Therefore, SolarWorld is not seeking a mere reexamination of the application submitted to the General Court, and the Court may undertake the review of the contested order. (17)

41.      Second, the question whether Article 3 of the regulation at issue may be regarded as severable from the remainder of that regulation within the meaning of the case-law and, as such, may alone be annulled, is not a question of fact. It is a question of legal characterisation which the Court has jurisdiction to review. (18)

42.      Therefore, I consider that the first ground of appeal is admissible.
(b)    Substance

43.      By the first ground of appeal, SolarWorld contends that the General Court erred in law in finding that Article 3 of the regulation at issue was not severable from the remainder of that regulation.

44.      I recall that, while Article 1 of the regulation at issue imposes anti-dumping duties in the form of ad valorem duties, Article 3 provides that the dumped imports ‘shall be exempt from the anti-dumping duty imposed by Article 1, on condition that … a company listed in the Annex to [Decision 2013/707] manufactured, shipped and invoiced … the products …’. The Annex to Decision 2013/707 lists all exporting producers whose offer of an undertaking was accepted by the Commission. That undertaking is described in Decision 2013/423 as consisting in a minimum import price up to a certain annual volume of imports, that volume corresponding to the exporting producers’ market performance at the time. (19)

45.      According to settled case-law, partial annulment of a measure of EU law is possible only if the elements which it is sought to have annulled can be severed from the remainder of the measure. That requirement is not satisfied where the partial annulment of the measure would cause the substance of that measure to be altered, a point which must be determined on the basis of an objective criterion and not of a subjective criterion linked to the political intention of the authority which adopted the measure at issue. (20) Review of whether elements of an EU act are severable requires consideration of the scope of those elements in order to assess whether their annulment would alter the spirit and substance of the act. (21)

46.      Would the annulment of Article 3 alone alter the substance of the regulation at issue? In my view, it would not.

47.      At the outset, I should point out that an error vitiating the anti-dumping duty may, just like an error vitiating a material finding, result in the alteration of the substance of the regulation imposing anti-dumping duties.

48.      There is no question that the institutions’ material findings pertaining to the determination of dumping, injury, causation and Union interest are capable, if annulled, of altering the substance of a regulation imposing anti-dumping duties since, failing one of those elements, no duty can be imposed. (22) By way of example, an error in the determination of the normal value can only lead to the annulment of the entire regulation imposing anti-dumping duties, given that ‘the normal value is an essential condition for determining the applicable rate of the anti-dumping duty’. (23)

49.      An error vitiating the anti-dumping duty is all the more capable of altering the substance of the regulation imposing that duty. This is because the purpose of such a regulation is precisely the imposition of a duty in order to remove the injury suffered by the Union industry.

50.      In that regard, reference must be made to the General Court’s recent judgment in Canadian Solar. (24) In Canadian Solar, Regulation No 1238/2013, whose Article 3 is challenged in the present proceeding, was challenged in its entirety by certain Chinese exporting producers and their associated importer. The Council and the Commission submitted, in particular, first, that the applicants had no interest in seeking the annulment of Article 3 (since during the administrative procedure they had sought the adoption of Article 3), second, that Article 1 was not severable from the remainder of the act with the result that, third, the action for the annulment of the regulation at issue in its entirety was inadmissible. The General Court held, first, that actions against a regulation imposing definitive anti-dumping duties brought by parties whose undertaking has been accepted are admissible, second, that Article 1 is not severable from the remainder of the regulation at issue, with the result that, third, the action for the annulment of the regulation at issue in its entirety was admissible. In particular, the General Court found that ‘an error capable of invalidating the assessments made by the institutions leading to the adoption of Article 1 of the [regulation at issue] would alter the very substance of that regulation. Article 3 … would automatically lapse, in so far as it sets out an exemption from the payment of the anti-dumping duties established by virtue of Article 1 of that regulation’. (25)

51.      In my view, the General Court was correct in ruling, in Canadian Solar, that Article 1 of the regulation at issue is not severable from the remainder of that regulation. However, for the reasons set out below, it does not follow that Article 3 is not severable from the remainder of the regulation at issue.

52.      First, I would like to stress that Article 1 of the regulation at issue does not make the imposition of duties dependent on any condition. In particular, the imposition of duties is not conditional on a breach or withdrawal of the undertaking. Therefore, if Article 3 of that regulation alone were to be annulled, Article 1 would apply as it does under the regulation at issue as adopted by the Council (only without the exemption).

53.      By contrast, Article 3 of the regulation at issue provides for an exemption from Article 1. Therefore, if Article 1 alone were to be annulled, the minimum import price set out in the undertaking would apply in lieu of the duties, whereas in the regulation at issue as adopted by the Council Article 3 only applies as an exemption from the payment of the duties set out in Article 1. (26)

54.      Therefore, it is irrelevant that, as argued by SolarWorld, the anti-dumping duties provided for by Article 1 of the regulation at issue and the undertaking to which Article 3 of that regulation refers are two forms of anti-dumping measures with the same purpose, that is, to remove the injury suffered by the Union industry. What matters is that one measure is an exemption from the other, and that, consequently, the annulment of the former would not have the same consequences as the annulment of the latter.

55.      It follows that, while the annulment of Article 1 of the regulation at issue would alter the substance of that regulation, the annulment of Article 3 of that regulation alone would not. The reason why, in Canadian Solar, (27) Article 1 was found not to be severable from the remainder of the regulation at issue, namely that Article 3 is an exemption from Article 1, is precisely the reason why Article 3 is to be considered severable.

56.      That conclusion is supported by the fact that, in every situation where the undertaking does not apply, or ceases to apply, the duties set out in Article 1 of the regulation at issue must be paid. As mentioned above, the minimum import price set out in the undertaking applies only up to a certain annual volume of imports. Imports beyond that volume are subject to the duties provided for by Article 1 of the regulation at issue. Moreover, according to Article 8(9) of the basic regulation, should the undertaking be breached or withdrawn by one party, or should the Commission withdraw its acceptance of the undertaking, the duties set out in Article 1 of the regulation at issue ‘shall automatically apply’. Acceptance of the undertaking was indeed withdrawn for certain exporting producers, on the ground that they had breached their obligations under the undertaking (in particular, their obligation to respect the minimum import price or their reporting obligations) (28) or on the ground that the exporting producers wished to withdraw from the undertaking. (29) The duties provided for in Article 1 of the regulation at issue were immediately applied. (30)

57.      Second, it is irrelevant that, as a result of the annulment of Article 3 of the regulation at issue alone, the anti-dumping duties set out in Article 1 would apply to all imports, whereas they currently apply only to imports by exporters which are not parties to the undertaking, that is to 30% of all imports.

58.      In that regard, I would like to point out that the annulment of Article 3 alone would not enlarge the scope of the regulation at issue, since pursuant to Article 1 the duties are imposed on all imports. Imports by companies which are parties to the undertaking are merely exempted from duties, as is clear from the fact that, should the undertaking be breached or withdrawn, the duties automatically apply.

59.      Should it indeed be considered that the annulment of Article 3 alone would enlarge the scope of the anti-dumping duties, this would, as argued by SolarWorld, be irrelevant since the scope ofthe regulation at issue would not be altered. As a result of the annulment of Article 3 alone, Article 1 would have exactly the same scope as the regulation at issue as adopted by the Council.

60.      Therefore, in my view, the General Court erred in law in finding, at paragraph 55 of the order under appeal, that the substance of the regulation at issue would be altered because the annulment of Article 3 alone ‘would confer a greater scope on the anti-dumping duties than that which arises from the application of the … regulation [at issue] as adopted by the Council’.

61.      Third, as regards the judgments cited at paragraph 57 of the order under appeal, namely the order in Carbunión, (31) the judgments in Du Pont de Nemours (32) and in Germany v Parliament and Council, (33) and the order in Government of Gibraltar v Commission, (34) it seems to me that they are distinguishable from the present case.

62.      In Carbunión, (35) the Court held that annulment could not be sought of only the conditions subject to which a State aid to the coal industry was declared compatible with the internal market. According to the compatibility decision, the aid at issue was ‘closure aid’ that was ‘intended specifically to cover the current production losses of coal production units’. Therefore, its compatibility with the internal market was conditional upon the existence of ‘a closure plan the deadline of which [did] not extend beyond 31 December 2018’. (36) Consequently, the Court found that the purpose of the compatibility decision was ‘to establish a specific legal framework for the closure of uncompetitive coal mines’. The annulment solely of the provision setting out that condition would alter the substance of the Council’s compatibility decision since it ‘would have the effect of removing [the] temporal requirement, meaning that uncompetitive coal mines would not have to cease operations by 31 December 2018, but could continue to receive State aid indefinitely, contrary to the purpose of the [Council’s compatibility decision]’. (37) By contrast, in the present case, the annulment of Article 3 would not remove any condition subject to which the anti-dumping duties set out in Article 1 were imposed since there are no such conditions. Therefore, the General Court was not correct in ruling, at paragraph 57 of the order under appeal, that the situation in Carbunión is similar to the one in the present proceeding.

63.      In Du Pont De Nemours, (38) the Court held that annulment could not be sought of only the provision of Directive 91/414/EEC (39) which fixed at 30 June 2008 the expiry date of the inclusion period of flusilazole (an active substance used in fungicides for agricultural crops) in Annex I to that directive (a plant protection product may be authorised by a Member State only if the active substances it contains are listed in that Annex and only if the conditions set out in that Annex are fulfilled). According to the Court, the purpose of Directive 91/414 was to ‘ensur[e] a high level of protection for human health and the environment’. Consequently, the annulment of the temporal condition alone ‘would result in the inclusion of flusilazole in Annex I to [that] directive … after 30 June 2008’, that is in the inclusion of that substance in Annex I ‘with less severe restrictions than those of [that] directive’, whose scope would thereby be altered. (40) In contrast, in the present case, the imposition of anti-dumping duties is not subject to any condition. Moreover, there is no question that the annulment of Article 3 of the regulation at issue cannot result in higher, or lower, duties, since the rates of those duties are set out in Article 1 of that regulation.

64.      In Germany v Parliament and Council, (41) the Court annulled in its entirety Directive 98/43/EC, (42) which prohibited advertising and sponsorship of tobacco products, on the ground that it could not be based on Article 100a of the EC Treaty (now, after amendment, Article 114 TFEU), which empowers the Council to adopt measures for the approximation of laws which have as their object the establishment and functioning of the internal market. This was because the prohibition by Directive 98/43 of all forms of advertising and sponsorship of tobacco products could not be justified by the need to eliminate obstacles to the free movement of advertising media or the freedom to provide services in the field of advertising. However, according to the Court, this was true only of the prohibition of the advertising of tobacco products on articles in hotels (posters, parasols, ashtrays) and of the prohibition of advertising spots in cinemas, since the prohibition of such forms of advertising could not facilitate the trade of the products concerned. This was not true of the prohibition of the advertising of tobacco products in periodicals, magazines and newspapers, since the prohibition of that form of advertising could facilitate the free movement of press products. (43) Nevertheless, the Court annulled Directive 98/43 in its entirety. This was because, ‘given the general nature of the prohibition of advertising and sponsorship of tobacco products laid down by [Directive 98/43], partial annulment of the Directive would entail amendment by the Court of the provisions of the Directive’. (44) As noted by Advocate General Fennelly, ‘the potential legitimacy of an advertising ban in certain media does not coincide with any distinct and severable wording in [Directive 98/43]’. Therefore, in the Advocate General’s words, partial annulment ‘would involve the Court in creative re-writing of the measure by interpretation. No obviously severable provision offers itself to the clean cut of an order of annulment’. (45) By contrast, in the present case, Article 3 of the regulation at issue offers itself to such a clean cut.

65.      In Government of Gibraltar v Commission, (46) the Court held that annulment could only be sought of Commission Decision 2009/95/EC in its entirety. (47) In Decision 2009/95, the Commission included a site in Gibraltar on the list of sites of Community importance within the meaning of Council Directive 92/43/EEC (‘the Habitats Directive’). (48) The Government of Gibraltar could not seek the annulment of Decision 2009/95 only to the extent that it extended the site at issue to geographical areas within UK territory. According to the Court, the different geographical areas of which the site at issue was allegedly composed were not referred to in Decision 2009/95. Furthermore, in the system of the Habitats Directive, a site could not be split into different areas. (49) In Government of Gibraltar v Commission, it was apparent from the provisions of the Habitats Directive that a site eligible for identification as a site of Community importance had to be assessed as a whole. In contrast, in the present case, it is irrelevant that the anti-dumping duties and the undertaking were assessed together with regard to the injury suffered by the Union industry. This is because, had the institutions considered that only the combination of the duties and of the undertaking could remove that injury, they would not have imposed the minimum import price in the form of an exemption from the duties.

66.      I conclude that the case-law cited by the General Court in paragraph 57 of the order under appeal does not apply to the present case.

67.      Fourth, contrary to what the Commission argues, the annulment of Article 3 of the regulation at issue alone would not alter the institutional balance between the Council and the Commission, on the one hand, (50) and the Courts of the Union, on the other. (51)

68.      I stress that the annulment of Article 3 alone would only lead to the application of a measure previously adopted by the Council and the Commission, namely Article 1. The Court would not decide to impose a certain type of anti-dumping measures (ad valorem duties rather than, for instance, a fixed amount duty). Nor would it calculate the rate of such duties.

69.      Moreover, it cannot be argued that partial annulment of a Union act may alter the institutional balance since, first, the power conferred upon the Court by the first paragraph of Article 264 TFEU to annul an act of Union law in its entirety entails the power to annul only part of that act (52) and, second, that power is not unlimited since, as discussed above, partial annulment cannot result in the alteration of the substance of the act. (53)

70.      Therefore, I consider that the first ground of appeal is well founded and that the General Court erred in law in finding that Article 3 of the regulation at issue is not severable from the remainder of that regulation. It follows that the order under appeal must be set aside.

71.      However, for the sake of completeness, I will now examine the second ground of appeal.
B.      Second ground of appeal

1.      Arguments of the parties

72.      By its second ground of appeal, SolarWorld submits that, in finding, at paragraphs 53 to 60 of the order under appeal, and in particular at paragraphs 55 and 59 of that order, that the action was inadmissible, the General Court infringed Articles 47 and 20 of the Charter.

73.      As regards the infringement of Article 47 of the Charter, SolarWorld maintains that, although Union producers have been found to be individually concerned by regulations imposing anti-dumping measures, they would be deprived of any effective judicial remedy if they could not seek partial annulment of those regulations. In that regard, SolarWorld stresses that its actions for the annulment of Regulation No 513/2013 and of Decisions 2013/423 and 2013/707 were dismissed as inadmissible.

74.      As regards the infringement of Article 20 of the Charter, SolarWorld argues that, in dismissing as inadmissible its action for the partial annulment of the regulation at issue while finding that the action brought by Chinese exporters for the annulment of that regulation was admissible, the General Court did not treat EU producers and Chinese exporters equally.

75.      The Council submits that the second ground of appeal should be rejected. The Council points out, in particular, that Article 47 of the Charter was not intended to change the system of judicial review laid down by the Treaties, particularly the rules relating to admissibility for direct actions before the Courts of the Union. As for the infringement of Article 20 of the Charter, that plea is inadmissible because it was not raised before the General Court. In any event, it is unfounded since SolarWorld and the Chinese producers were not treated differently. This is because SolarWorld could have sought the annulment of the entire regulation at issue.

76.      The Commission contends that the second ground of appeal is unfounded. As regards the infringement of Article 47 of the Charter, the Commission stresses, first, that that provision was not intended to change the system of judicial review laid down by the Treaties, second, that SolarWorld did in fact bring an action for the annulment of Decisions 2013/423 and 2013/707 and, third, that it could have brought an action for the annulment of the entire regulation at issue. As for the infringement of Article 20 of the Charter, the Commission submits that SolarWorld and the Chinese exporters were not treated differently since SolarWorld could have brought an action for the annulment of the entire regulation at issue and it could have requested the suspension of the effects of the judgment until that regulation was replaced by a fresh regulation imposing higher anti-dumping duties.
2.      Assessment

(a)    Admissibility

77.      The Council argues that the plea alleging an infringement of Article 20 of the Charter is inadmissible since it was not raised before the General Court.

78.      It is true that SolarWorld did not raise a plea alleging an infringement of Article 20 of the Charter in its reply to the Council’s plea of inadmissibility before the General Court. Therefore, the second ground of appeal is, in my view, inadmissible in so far as it alleges an infringement of Article 20 of the Charter.

79.      Nevertheless, for the sake of completeness, I will examine below whether, in dismissing SolarWorld’s action as inadmissible, the General Court infringed Article 20 of the Charter.
(b)    Substance

80.      By the second ground of appeal, SolarWorld contends that, in dismissing its action as inadmissible, the General Court infringed Articles 47 and 20 of the Charter.

81.      In my view, the second ground of appeal must be rejected.

82.      First, as regards the alleged infringement of Article 47 of the Charter, it is true that, as mentioned above, SolarWorld’s action for the annulment of Decision 2013/707, whereby the Commission accepted the exporting producers’ offer of an undertaking, was dismissed as inadmissible on the ground that ‘a decision accepting an undertaking offer … does not produce legal effects such as to affect directly the legal situation of European Union producers such as [SolarWorld]’. (54) SolarWorld’s action for the annulment of the decision contained in the Commission’s letter of 15 September 2014, whereby the Commission adjusted the minimum import price set out in the undertaking, was dismissed by the General Court on the merits, ‘without it being necessary to examine its admissibility’. (55)

83.      However, I note that, according to the Explanations relating to the Charter, Article 47 ‘[was not] intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to admissibility for direct actions before the Court of Justice of the European Union’. (56) Consequently, it is settled case-law that the conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, but such an interpretation cannot have the effect of setting aside the conditions expressly laid down in that Treaty. (57)

84.      Moreover, the question before the Court is whether an action may be brought for the annulment of Article 3 of the regulation at issue alone. Should the Court find that that provision is not severable from the remainder of the act, an action could still be brought for the annulment of the regulation at issue in its entirety. In that regard, it cannot be argued that the annulment of that regulation in its entirety would have no useful purpose for SolarWorld. This is because SolarWorld could seek the annulment of the regulation at issue in its entirety and request that the Court suspend the effects of that annulment until the adoption by the institutions of the necessary measures for implementing the judgment bringing about the annulment. (58)

85.      Therefore, I consider that the plea alleging an infringement of Article 47 of the Charter must be rejected.

86.      Second, as regards the alleged infringement of Article 20 of the Charter, it seems to me that, should the Court consider that Article 3 of the regulation at issue is not severable from the remainder of that regulation and that SolarWorld cannot seek partial annulment of the regulation at issue, SolarWorld would not be treated differently from exporting producers. As mentioned above, it follows from the General Court’s judgment in Canadian Solar that exporting producers cannot seek partial annulment of the regulation at issue (since Article 1 is not severable from the remainder of that regulation). (59)

87.      Consequently, should the Court consider that the plea alleging an infringement of Article 20 of the Charter is admissible, it should, in my view, reject that plea as unfounded.

88.      I conclude that the General Court erred in law in finding that Article 3 of the regulation at issue is not severable from the remainder of that regulation. Consequently, the order under appeal must be set aside.

89.      Where a judgment or an order is set aside on appeal, Article 61 of the Statute of the Court provides that the Court may either refer the case back to the General Court or itself give judgment in the matter, where the state of the proceedings so permits.

90.      In the present case, the question whether SolarWorld has standing to seek the annulment of Article 3 of the regulation at issue, which was challenged at first instance by the Council, was not examined by the General Court in the order under appeal. Nor is it mentioned in the written submissions of the parties before the Court of Justice. The same is true of the pleas pertaining to the merits of the appeal. Therefore, the state of the proceedings in this case is not such that final judgment can be given in the matter.

91.      Accordingly, the case must be referred back to the General Court and the costs reserved.
VI.    Conclusion

92.      In the light of the foregoing considerations, I consider that the Court should:
–        set aside the order of the General Court of the European Union of 1 February 2016, SolarWorld and Others v Council, T‑141/14;
–        refer Case T‑141/14 back to the General Court of the European Union; and
–        reserve the costs.

1      Original language: English.

2      Order of 1 February 2016, SolarWorld and Others v Council, T‑141/14, EU:T:2016:67 (‘the order under appeal’).

3      Regulation 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).

4      Regulation of 30 November 2009 on protection against dumped imports from countries not members of the European Community (codified version) (‘the basic regulation’) (OJ 2009 L 343, p. 51).

5      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).

6      Notice of initiation of an anti-subsidy 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 340, p. 13).

7      Regulation 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).

8      Order of 14 April 2015, SolarWorld and Solsonica v Commission, T‑393/13, not published, EU:T:2015:211.

9      Order of 16 March 2016, SolarWorld v Commission, C‑312/15 P, not published, EU:C:2016:162.

10      Decision 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 (2013/423/EU) (OJ 2013 L 209, p. 26).

11      Regulation of 2 August 2013 amending Regulation (EU) No 513/2013 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 (OJ 2013 L 209, p. 1).

12      Decision of 4 December 2013 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 (2013/707/EU) (OJ 2013 L 325, p. 214).

13      Regulation of 2 December 2013 imposing a definitive countervailing duty 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. 66).

14      Order of 14 January 2015, SolarWorld and Others v Commission, T‑507/13, EU:T:2015:23.

15      Order of 10 March 2016, SolarWorld v Commission, C‑142/15 P, not published, EU:C:2016:163.

16      Judgment of 16 February 2017, SolarWorld v Commission, T‑783/14, not published, EU:T:2017:88.

17      Judgment of 19 January 2017, Commission v Total and Elf Aquitaine, C‑351/15 P, EU:C:2017:27, paragraphs 30 to 34.

18      Judgment of 1 October 2014, Council v Alumina, C‑393/13 P, EU:C:2014:2245, paragraphs 15 to 19.

19      See recitals 5 and 6 of Decision 2013/423.

20      Judgment of 6 December 2012, Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:778, paragraph 38.

21      Judgment of 12 November 2015, United Kingdom v Parliament and Council, C‑121/14, EU:C:2015:749, paragraph 21.

22      See Article 7(1) and Article 9(4) of the basic regulation.

23      Judgment of 15 September 2016, PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia v Council, T‑139/14, not published, EU:T:2016:499, paragraph 109. An appeal has been lodged against that judgment and is pending before the Court (see Council v PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia, C‑603/16 P).

24      Judgment of 28 February 2017, Canadian Solar Emea and Others v Council, T‑162/14, not published, EU:T:2017:124 (‘Canadian Solar’). An appeal was brought against that judgment and is pending before the Court (see Canadian Solar Emea and Others v Council, C‑236/17 P).

25      Judgment of 28 February 2017, Canadian Solar Emea and Others v Council, T‑162/14, not published, EU:T:2017:124, paragraph 45.

26      The institutions could have chosen to impose a minimum price duty instead of the ad valorem duty imposed by Article 1 of the regulation at issue (see, for instance, Council Regulation (EC) No 1334/1999 of 21 June 1999 imposing a definitive anti-dumping duty on imports of magnesium oxide originating in the People’s Republic of China, OJ 1999 L 159, p. 1). They could also have imposed a combination of a minimum price duty and an ad valorem duty (see Council Regulation (EC) No 985/2003, of 5 June 2003, amending the anti-dumping measures imposed by Regulation No 1334/1999, OJ 2003 L 143, p. 1).

27      Judgment of 28 February 2017, Canadian Solar Emea and Others v Council, T‑162/14, not published, EU:T:2017:124.

28      Commission Implementing Regulation (EU) 2015/866 of 4 June 2015 withdrawing the acceptance of the undertaking for three exporting producers under Implementing Decision 2013/707 (OJ 2015 L 139, p. 30); Commission Implementing Regulation (EU) 2015/1403 of 18 August 2015 withdrawing the acceptance of the undertaking for one exporting producer under Implementing Decision 2013/707 (OJ 2015 L 218, p. 1); Commission Implementing Regulation (EU) 2015/2018 of 11 November 2015 withdrawing the acceptance of the undertaking for two exporting producers under Implementing Decision 2013/707 (OJ 2015 L 295, p. 23); Commission Implementing Regulation (EU) 2016/1045 of 28 June 2016 withdrawing the acceptance of the undertaking for one exporting producer under Implementing Decision 2013/707 (OJ 2016 L 170, p. 5); and Commission Implementing Regulation (EU) 2016/2146 of 7 December 2016 withdrawing the acceptance of the undertaking for two exporting producers under Implementing Decision 2013/707 (OJ 2016 L 333, p. 4).

29      Commission Implementing Regulation (EU) 2016/115 of 28 January 2016 withdrawing the acceptance of the undertaking for one exporting producer under Implementing Decision 2013/707 (OJ 2016 L 23, p. 47); and Commission Implementing Regulation (EU) 2016/1998 of 15 November 2016 withdrawing the acceptance of the undertaking for five exporting producers under Implementing Decision 2013/707 (OJ 2016 L 308, p. 8).

30      See recital 96 of Regulation 2015/866, recital 34 of Regulation 2015/1403, recital 70 of Regulation 2015/2018, recital 16 of Regulation 2016/115, recital 55 of Regulation 2016/1045, recital 23 of Regulation 2016/1998, and recital 45 of Regulation 2016/2146.

31      Order of 11 December 2014, Carbunión v Council, C‑99/14 P, not published, EU:C:2014:2446 (‘Carbunión’).

32      Judgment of 12 April 2013, Du Pont de Nemours (France) and Others v Commission, T‑31/07, not published, EU:T:2013:167 (‘Du Pont de Nemours’).

33      Judgment of 5 October 2000, Germany v Parliament and Council, C‑376/98, EU:C:2000:544 (‘Germany v Parliament and Council’).

34      Order of 12 July 2012, Government of Gibraltar v Commission, C‑407/11 P, not published, EU:C:2012:464 (‘Government of Gibraltar v Commission’).

35      Order of 11 December 2014, Carbunión v Council, C‑99/14 P, not published, EU:C:2014:2446.

36      Article 3(1) of the Council Decision 2010/787/EU of 10 December 2010 on State aid to facilitate closure of uncompetitive coal mines (OJ 2010 L 336, p. 24).

37      Order of 11 December 2014, Carbunión v Council, C‑99/14 P, not published, EU:C:2014:2446, paragraphs 28 and 31.

38      Judgment of 12 April 2013, Du Pont de Nemours (France) and Others v Commission, T‑31/07, not published, EU:T:2013:167.

39      Directive of 15 July 1991 concerning the placing of plant protection products on the market (OJ 1991 L 230, p. 1).

40      Judgment of 12 April 2013, Du Pont de Nemours (France) and Others v Commission, T‑31/07, not published, EU:T:2013:167, paragraph 85.

41      Judgment of 5 October 2000, Germany v Parliament and Council, C‑376/98, EU:C:2000:544.

42      Directive of the European Parliament and of the Council of 6 July 1998 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the advertising and sponsorship of tobacco products (OJ 1998 L 213, p. 9).

43      Judgment of 5 October 2000, Germany v Parliament and Council, C‑376/98, EU:C:2000:544, paragraphs 98 and 99.

44      Judgment of 5 October 2000, Germany v Parliament and Council, C‑376/98, EU:C:2000:544, paragraph 117.

45      Opinion of Advocate General Fennelly in Germany v Parliament and Council, C‑376/98, EU:C:2000:324, point 127.

46      Order of 12 July 2012, Government of Gibraltar v Commission, C‑407/11 P, not published, EU:C:2012:46.

47      Decision of 12 December 2008 adopting, pursuant to Council Directive 92/43/EEC, a second updated list of sites of Community importance for the Mediterranean biogeographical region (OJ 2009 L 43, p. 393).

48      Directive of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7).

49      Order of 12 July 2012, Government of Gibraltar v Commission, C‑407/11 P, not published, EU:C:2012:46, paragraphs 31 to 33.

50      Note that, since the entry into force of Regulation (EU) No 37/2014 of the European Parliament and of the Council, of 15 January 2014, amending certain regulations relating to the common commercial policy as regards the procedures for the adoption of certain measures (OJ 2014 L 18, p. 1), it is the Commission which adopts definitive anti-dumping duties and not the Council. In that regard, see Scharf, T., ‘Decision-Making in EU Trade Defence Cases After Lisbon: An Institutional Anomaly Addressed?’, in Herrmann, C., Simma, B., and Streinz, R. (ed.), Trade Policy between Law, Diplomacy and Scholarship. Liber amicorum in memoriam Horst G. Krenzler, Springer, 2015, pp. 395 to 406.

51      The Commission’s argument is as follows. It is for the Commission and the Council to decide which anti-dumping measure should be imposed. However, the annulment of Article 3 alone would result in the replacement of the undertaking to which Article 3 refers with the anti-dumping duties set out in Article 1. In other words, the annulment of Article 3 alone would allow the Court to decide which anti-dumping measure should be imposed. Therefore, the annulment of Article 3 alone would alter the institutional balance between the Commission and the Council, on the one hand, and the Courts of the Union, on the other hand. Only the annulment of the regulation at issue in its entirety would allow for the institutional balance to be respected since it would be for the Commission and the Council to impose fresh anti-dumping measures in order to comply with the judgment bringing about the annulment.

52      Opinion of Advocate General Kokott in Commission v Verhuizingen Coppens, C‑441/11 P, EU:C:2012:317, point 25.

53      Opinion of Advocate General Tesauro in France and Others v Commission, C‑68/94 and C‑30/95, EU:C:1997:54, point 142.

54      Order of 14 January 2015, SolarWorld and Others v Commission, T‑507/13, EU:T:2015:23, paragraph 52.

55      Judgment of 16 February 2017, SolarWorld v Commission, T‑783/14, not published, EU:T:2017:88, paragraph 59.

56      Explanations relating to the Charter of Fundamental Rights (OJ 2007 C 303, p. 17).

57      Judgments of 24 November 2016, Ackermann Saatzucht and Others v Parliament and Council, C‑408/15 P and C‑409/15 P, not published, EU:C:2016:893, paragraph 50, and of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 98.

58      Judgment of 12 April 2013, Du Pont de Nemours (France) and Others v Commission, T‑31/07, not published, EU:T:2013:167, paragraph 99.

59      Judgment of 28 February 2017, Canadian Solar Emea and Others v Council, T‑162/14, not published, EU:T:2017:124, paragraph 45.