Council of the European Union v Growth Energy and Renewable Fuels Association.
Date: 2019-02-28
47


It should be noted that the assessment of facts and evidence does not indeed constitute, save where the clear sense of the facts and evidence has been distorted, a question of law which is subject, as such, to review by the Court of Justice in the context of an appeal. However, where the General Court has determined or assessed the facts, the Court of Justice has jurisdiction under Article 256 TFEU to review their legal characterisation and the legal conclusions which were drawn therefrom (judgments of 28 May 1998, Deere v Commission, C‑7/95 P, EU:C:1998:256, paragraph 21; of 10 December 2002, Commission v Camar and Tico, C‑312/00 P, EU:C:2002:736, paragraph 69; and of 28 June 2018, Andres (insolvency of Heitkamp BauHolding) v Commission, C‑203/16 P, EU:C:2018:505, paragraph 77).
49


In so doing, the Council therefore puts in issue the legal conclusions which the General Court drew from its findings of fact, in this case recognising that Growth Energy and Renewable Fuels Association had standing to bring proceedings for the annulment of the regulation at issue, as provided for in the fourth paragraph of Article 263 TFEU, so that the main appeal must, at the very least to that extent, be declared admissible (see, to that effect, judgments of 10 December 2002, Commission v Camar and Tico, C‑312/00 P, EU:C:2002:736, paragraph 71; of 28 June 2018, Germany v Commission, C‑208/16 P, not published, EU:C:2018:506, paragraph 76; and of 28 June 2018, Germany v Commission, C‑209/16 P, not published, EU:C:2018:507 paragraph 74).
57


It is apparent from those provisions, read together, that the response may not seek to have the judgment under appeal set aside on the basis of distinct and independent grounds from those raised in the appeal, since such grounds may be raised only as part of a cross-appeal (judgments of 10 November 2016, DTS Distribuidora de Televisión Digital v Commission, C‑449/14 P, EU:C:2016:848, paragraphs 99 to 101, and of 30 May 2017, Safa Nicu Sepahan v Council, C‑45/15 P, EU:C:2017:402, paragraph 20).
59


However, according to settled case-law, the Court, in an appeal before it under Article 56 of its statute, may rule, if necessary of its own motion, whether there is an absolute bar to proceeding arising from disregard of the conditions as to admissibility laid down in Article 263 TFEU (see judgment of 29 April 2004, Italy v Commission, C‑298/00 P, EU:C:2004:240, paragraph 35, and orders of 15 April 2010, Makhteshim-Agan Holding and Others v Commission, C‑517/08 P, not published, EU:C:2010:190, paragraph 54, and of 7 December 2017, Eurallumina v Commission, C‑323/16 P, not published, EU:C:2017:952, paragraph 31).
65


The Council states that the General Court held that those four producers were directly concerned since they were producers of the product which — when imported into the European Union — was subject to the anti-dumping duty. The imposition of such a duty changed the legal conditions under which the bioethanol was marketed on the EU market. According to the Council, the finding of such a direct effect is incompatible with the finding by the Court of Justice in its judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission (C‑456/13 P, EU:C:2015:284, paragraphs 44 to 51). As producers with no direct sales into the European Union, they can at most be indirectly affected in an economic manner, in that they are potentially placed at a competitive disadvantage compared to other bioethanol manufacturers on whose products there are no duties.
69


In accordance with the settled case-law of the Court of Justice, referred to by the General Court in paragraph 67 of the judgment under appeal, the condition that a natural or legal person must be directly concerned by the measure being challenged requires two cumulative criteria to be met, namely, first, the contested measure must directly affect the legal situation of that person and, secondly, it must leave no discretion to its addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules alone without the application of other intermediate rules (see, in particular, judgment of 5 May 1998, Compagnie Continentale (France) v Commission, C‑391/96 P, EU:C:1998:194, paragraph 41, and orders of 10 March 2016, SolarWorld v Commission, C‑142/15 P, not published, EU:C:2016:163, paragraph 22, and of 21 April 2016, Makro autoservicio mayorista and Vestel Iberia v Commission, C‑264/15 P and C‑265/15 P, not published, EU:C:2016:301, paragraph 45).
72


It should be recalled in that regard that, in accordance with the Court’s settled case-law, while regulations imposing anti-dumping duties on a product are by their nature and scope of a legislative nature, in that they apply generally to the economic operators concerned, it is conceivable that they may be of direct and individual concern to some of those operators, in particular, under certain conditions, to producers and exporters of that product (see, to that effect, judgment of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraph 19 and the case-law cited).
73


In that regard, the Court has repeatedly held that measures imposing anti-dumping duties are liable to be of direct and individual concern to producers and exporters of the product at issue who are alleged to be involved in dumping on the basis of data concerning their commercial activities. That is so where producers and exporters are able to establish that they were identified in the measures adopted by the Commission or the Council, or were concerned by the preliminary investigations (see, to that effect, in particular, judgments of 21 February 1984, Allied Corporation and Others v Commission, 239/82 and 275/82, EU:C:1984:68, paragraphs 11 and 12, and of 7 May 1987, NTN Toyo Bearing and Others v Council, 240/84, EU:C:1987:202, paragraph 5).
81


While the regulation at issue may indeed place US bioethanol producers at a competitive disadvantage, such a fact, if proven, cannot of itself allow the view to be taken that their legal position was affected by the provisions of that regulation and that those provisions were, therefore, of direct concern to them (see, to that effect, judgments of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 37, and of 17 September 2015, Confederazione Cooperative Italiane and Others v Anicav and Others, C‑455/13 P, C‑457/13 P and C‑460/13 P, not published, EU:C:2015:616, paragraph 49).
98


They state that the two judgments relied on by the General Court in that regard, namely the judgments of 4 October 1983, Fediol v Commission (191/82, EU:C:1983:259, paragraph 31), and of 17 January 2002, Rica Foods v Commission (T‑47/00, EU:T:2002:7, paragraph 55), cannot support that conclusion. While it may be inferred from those judgments that a person can be individually concerned by a measure only ‘if the applicable EU legislation grants him certain procedural guarantees’, those judgments nevertheless do not support the argument that standing to bring proceedings should be limited solely to pleas in law alleging infringement of procedural rights.
102


It held more specifically, first, in paragraph 79 of the judgment under appeal, that Growth Energy and Renewable Fuels Association were not directly concerned by the regulation at issue, in that it imposed anti-dumping duties only on their members’ products, since it did not bring about a change in the legal situation of Growth Energy and Renewable Fuels Association. The General Court did, however, hold, secondly, in paragraphs 80 to 85 and 87 of the judgment under appeal, that those two associations did nonetheless have standing to bring proceedings against the regulation at issue, in their capacity as representative associations who have been involved in the procedure leading to the adoption of that regulation, but only in a limited manner, solely for the purposes of ensuring that their procedural rights under the basic anti-dumping regulation are safeguarded. The General Court held, thirdly, in paragraph 86 of the judgment under appeal, that Growth Energy and Renewable Fuels Association could not rely on the judgment of 24 March 1993, CIRFS and Others v Commission (C‑313/90, EU:C:1993:111, paragraphs 28 to 30), since their position as representative associations as referred to in the basic anti-dumping regulation is not comparable to that of a negotiator acting formally on behalf of its members.
103


In the first part of their ground, which is directed at paragraphs 79 and 86 of the judgment under appeal, Growth Energy and Renewable Fuels Association submit, in essence, that the General Court ought to have recognised that they had full and complete standing to bring proceedings, since they actively participated in the anti-dumping administrative procedure. In their view, the General Court therefore erred in law in finding, first, in paragraph 79 of the judgment under appeal, that they were not directly concerned by the regulation at issue and, secondly, in paragraph 86 of that judgment, that they were not a situation comparable to that which gave rise to the judgment of 24 March 1993, CIRFS and Others v Commission (C‑313/90, EU:C:1993:111, paragraphs 28 to 30)
105


First, as the Advocate General observed in point 153 of his Opinion, the regulation at issue cannot be considered to have altered the rights and obligations of Growth Energy and Renewable Fuels Association simply because they had the authority and task of defending and representing the rights of the US bioethanol industry on behalf of their members. Secondly, as the Advocate General observed in points 160 to 165 of his Opinion, the General Court correctly found that the situation of Growth Energy and Renewable Fuels Association was in no way analogous to the exceptional situation of a negotiator examined in the case which gave rise to the judgment of 24 March 1993, CIRFS and Others v Commission (C‑313/90, EU:C:1993:111, paragraphs 28 to 30).
107


In that regard, the Court of Justice has held that a natural or legal person enjoying procedural rights in the context of the adoption of an EU act will not, as a rule, where there is any type of procedural guarantee, have standing to bring proceedings contesting the legality of that act in terms of its substantive content. The precise scope of an individual’s right of action against an EU measure depends on his legal position as defined by EU law with a view to protecting the legitimate interests thus afforded him (judgments of 25 October 1977, Metro SB-Großmärkte v Commission, 26/76, EU:C:1977:167, paragraph 13, and of 4 October 1983, Fediol v Commission, 191/82, EU:C:1983:259, paragraph 31, and order of 5 May 2009, WWF-UK v Council, C‑355/08 P, not published, EU:C:2009:286, paragraph 44).
122


As the Advocate General stated, in point 129 of his Opinion, the admissibility of an action for annulment brought by a trade association which is responsible for protecting the collective interests of its members depends, in the second situation envisaged by the General Court in paragraph 45 of the judgment under appeal, on whether the undertakings which it represents themselves have locus standi (see, to that effect, order of 18 December 1997, Sveriges Betodlares and Henrikson v Commission, C‑409/96 P, EU:C:1997:635, paragraphs 46 and 47; judgments of 22 June 2006, Belgium and Forum 187 v Commission, C‑182/03 and C‑217/03, EU:C:2006:416, paragraph 56; of 22 December 2008, British Aggregates v Commission, C‑487/06 P, EU:C:2008:757, paragraph 33; and of 13 March 2018, European Union Copper Task Force v Commission, C‑384/16 P, EU:C:2018:176, paragraph 87).
131


Consequently, bearing in mind that it was for Growth Energy and Renewable Fuels Association to prove that their members were not only individually, but also directly, concerned by the regulation at issue, since those two conditions are cumulative (see, to that effect, judgments of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 76, and of 13 March 2018, Industrias Químicas del Vallés v Commission, C‑244/16 P, EU:C:2018:177, paragraph 93), the plea of inadmissibility raised by the Council must be upheld and the action for annulment of the regulation at issue dismissed as being inadmissible on that point.