Council of the European Union v Marquis Energy LLC.
Date: 2019-02-28
35


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).
37


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 Marquis Energy 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 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).
40


The Council states that the General Court held that Marquis Energy was directly concerned since it was a producer 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 a producer with no direct sales into the European Union, Marquis Energy can at most be indirectly affected in an economic manner, in that it is potentially placed at a competitive disadvantage compared to other bioethanol manufacturers on whose products there are no duties.
44


In accordance with the settled case-law of the Court of Justice, referred to by the General Court in paragraph 44 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).
47


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).
48


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).
56


While the regulation at issue may indeed place a US bioethanol producer such as Marquis Energy at a competitive disadvantage, such a fact, if proven, cannot of itself allow the view to be taken that that company’s legal position was affected by the provisions of that regulation and that those provisions were, therefore, of direct concern to it (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).
62


Consequently, bearing in mind that it was for Marquis Energy to prove that it was 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 inadmissible.