1 By their appeal in Case C‑269/23 P, Hengshi Egypt Fiberglass Fabrics SAE (‘Hengshi’) and Jushi Egypt for Fiberglass Industry SAE (‘Jushi’) seek to have set aside the judgment of the General Court of the European Union of 1 March 2023, Hengshi Egypt Fiberglass Fabrics and Jushi Egypt for Fiberglass Industry v Commission (T‑480/20, ‘the judgment in Case T‑480/20’, EU:T:2023:90), by which the General Court dismissed their action for the annulment, in so far as it concerned them, of Commission Implementing Regulation (EU) 2020/776 of 12 June 2020 imposing definitive countervailing duties on imports of certain woven and/or stitched glass fibre fabrics originating in the People’s Republic of China and Egypt and amending Commission Implementing Regulation (EU) 2020/492 imposing definitive anti-dumping duties on imports of certain woven and/or stitched glass fibre fabrics originating in the People’s Republic of China and Egypt (OJ 2020 L 189, p. 1) (‘the regulation at issue in Case T‑480/20’).
2 By its appeal in Case C‑272/23 P, Jushi seeks to have set aside the judgment of the General Court of 1 March 2023, Jushi Egypt for Fiberglass Industry v Commission (T‑540/20, the judgment in Case T‑540/20 and, together with the judgment in Case T‑480/20, the judgments under appeal, EU:T:2023:91), by which the General Court dismissed Jushi Egypt’s action for annulment, in so far as it concerned Jushi Egypt, of Commission Implementing Regulation (EU) 2020/870 of 24 June 2020 imposing a definitive countervailing duty and definitively collecting the provisional countervailing duty imposed on imports of continuous filament glass fibre products originating in Egypt, and levying the definitive countervailing duty on the registered imports of continuous filament glass fibre products originating in Egypt (OJ 2020 L 201, p. 10; ‘the regulation at issue in Case T‑540/20’ and, taken together with the regulation at issue in Case T‑480/20, ‘the regulations at issue’).
3 The Agreement establishing the World Trade Organization (WTO) signed at Marrakech on 15 April 1994 was approved by Council Decision 94/800/EC of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence, of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1; ‘the Agreement establishing the WTO’). Annex 1A to that agreement includes, inter alia, an agreement on subsidies and countervailing measures.
4 Article 1 of the Agreement on Subsidies and Countervailing Measures, which is entitled ‘Definition of a Subsidy’, provides: ‘1.1 For the purpose of this Agreement, a subsidy shall be deemed to exist if: (a) (1) there is a financial contribution by a government or any public body within the territory of a Member (referred to in this Agreement as “government”), i.e. where: (i) a government practice involves a direct transfer of funds (e.g. grants, loans and equity infusion), potential direct transfers of funds or liabilities (e.g. loan guarantees); (ii) government revenue that is otherwise due is forgone or not collected (e.g. fiscal incentives such as tax credits) …; (iii) a government provides goods or services other than general infrastructure, or purchases goods; (iv) a government makes payments to a funding mechanism, or entrusts or directs a private body to carry out one or more of the type of functions illustrated in (i) to (iii) above which would normally be vested in the government and the practice, in no real sense, differs from practices normally followed by governments; … and (b) a benefit is thereby conferred. …’
5 Article 2 of that agreement, which is entitled ‘Specificity’, provides: ‘2.1 In order to determine whether a subsidy, as defined in paragraph 1 of Article 1, is specific to an enterprise or industry or group of enterprises or industries (referred to in this Agreement as “certain enterprises”) within the jurisdiction of the granting authority, the following principles shall apply: (a) Where the granting authority, or the legislation pursuant to which the granting authority operates, explicitly limits access to a subsidy to certain enterprises, such subsidy shall be specific. (b) Where the granting authority, or the legislation pursuant to which the granting authority operates, establishes objective criteria or conditions … governing the eligibility for, and the amount of, a subsidy, specificity shall not exist, provided that the eligibility is automatic and that such criteria and conditions are strictly adhered to. … (c) If, notwithstanding any appearance of non-specificity resulting from the application of the principles laid down in subparagraphs (a) and (b), there are reasons to believe that the subsidy may in fact be specific, other factors may be considered. … 2.2 A subsidy which is limited to certain enterprises located within a designated geographical region within the jurisdiction of the granting authority shall be specific. … …’
6 Article 5 of that agreement, which is entitled ‘Adverse Effects’, states: ‘No Member should cause, through the use of any subsidy referred to in paragraphs 1 and 2 of Article 1, adverse effects to the interests of other Members, … …’
7 Article 11 of that agreement, which is entitled ‘Initiation and Subsequent Investigation’, provides in paragraph 8 thereof: ‘In cases where products are not imported directly from the country of origin but are exported to the importing Member from an intermediate country, the provisions of this Agreement shall be fully applicable and the transaction or transactions shall, for the purposes of this Agreement, be regarded as having taken place between the country of origin and the importing Member.’
8 Protection against subsidised imports from countries not members of the European Union was successively governed, from 1968 until 1994, by a series of regulations common to that field and that of anti-dumping, and then by a series of specific regulations. The last of those specific regulations is Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (OJ 2016 L 176, p. 55), as amended by Regulation (EU) 2018/825 of the European Parliament and of the Council of 30 May 2018 (OJ 2018 L 143, p. 1) (‘Regulation 2016/1037’).
9 Recitals 2 to 5 of Regulation 2016/1037 state: ‘(2) Annex 1A to the Agreement establishing the World Trade Organization … contains, inter alia, … an Agreement on Subsidies and Countervailing Measures … (3) In order to ensure a proper and transparent application of the rules provided for in the [Agreement on Subsidies and Countervailing Measures], the language of that agreement should be reflected in Union legislation to the best extent possible. (4) Furthermore, it is appropriate to explain, in adequate detail, when a subsidy is to be deemed to exist, according to which principles it is to be countervailable (in particular whether the subsidy has been granted specifically), and according to which criteria the amount of the countervailable subsidy is to be calculated. (5) In determining the existence of a subsidy, it is necessary to demonstrate that there has been a financial contribution by a government or a public body within the territory of a country … and that a benefit has thereby been conferred on the recipient enterprise.’
10 Article 1 of that regulation, which is entitled ‘Principles’, states: ‘1. A countervailing duty may be imposed to offset any subsidy granted, directly or indirectly, for the manufacture, production, export or transport of any product whose release for free circulation in the [European] Union causes injury. 2. Notwithstanding paragraph 1, where products are not directly imported from the country of origin but are exported to the [European] Union from an intermediate country, the provisions of this Regulation shall be fully applicable and the transaction or transactions shall, where appropriate, be regarded as having taken place between the country of origin and the [European] Union.’
11 Article 2 of that regulation provides, inter alia, that, for the purposes of that regulation: ‘(a) a product is considered to be subsidised if it benefits from a countervailable subsidy as defined in Articles 3 and 4. Such subsidy may be granted by the government of the country of origin of the imported product, or by the government of an intermediate country from which the product is exported to the [European] Union, known for the purposes of this Regulation as “the country of export”; (b) “government” means a government or any public body within the territory of the country of origin or export’.
12 Article 3 of that regulation, which is entitled ‘Definition of a subsidy’, is worded as follows: ‘A subsidy shall be deemed to exist if: 1. (a) there is a financial contribution by a government in the country of origin or export, that is to say, where: (i) a government practice involves a direct transfer of funds (for example, grants, loans, equity infusion), potential direct transfers of funds or liabilities (for example, loan guarantees); (ii) government revenue that is otherwise due is forgone or not collected (for example, fiscal incentives such as tax credits). … (iii) a government provides goods or services other than general infrastructure, or purchases goods; (iv) a government: - makes payments to a funding mechanism, or - entrusts or directs a private body to carry out one or more of the type of functions illustrated in points (i), (ii) and (iii) which would normally be vested in the government, and the practice, in no real sense, differs from practices normally followed by governments; … … and 2. a benefit is thereby conferred.’
13 Article 4 of Regulation 2016/1037, entitled ‘Countervailable subsidies’, states: ‘1. Subsidies shall be subject to countervailing measures only if they are specific, as defined in paragraphs 2, 3 and 4. 2. In order to determine whether a subsidy is specific to an enterprise or industry or group of enterprises or industries (“certain enterprises”) within the jurisdiction of the granting authority, the following principles shall apply: (a) where the granting authority, or the legislation pursuant to which the granting authority operates, explicitly limits access to a subsidy to certain enterprises, such a subsidy shall be specific; (b) where the granting authority, or the legislation pursuant to which the granting authority operates, establishes objective criteria or conditions governing the eligibility for, and the amount of, a subsidy, specificity shall not exist, provided that the eligibility is automatic and that such criteria and conditions are strictly adhered to; (c) if, notwithstanding any appearance of non-specificity resulting from the application of the principles laid down in points (a) and (b), there are reasons to believe that the subsidy may in fact be specific, other factors may be considered. Such factors are: use of a subsidy programme by a limited number of certain enterprises; predominant use by certain enterprises; the granting of disproportionately large amounts of subsidy to certain enterprises; the manner in which discretion has been exercised by the granting authority in the decision to grant a subsidy. … … 3. A subsidy which is limited to certain enterprises located within a designated geographical region within the jurisdiction of the granting authority shall be specific. … …’
14 According to Article 5 of that regulation, which is entitled ‘Calculation of the amount of the countervailable subsidy’: ‘The amount of countervailable subsidies shall be calculated in terms of the benefit conferred on the recipient which is found to exist during the investigation period for subsidisation. Normally this period shall be the most recent accounting year of the beneficiary, but may be any other period of at least six months prior to the initiation of the investigation for which reliable financial and other relevant data are available.’
15 Article 6 of that regulation, which is entitled ‘Calculation of benefit to the recipient’, states: ‘As regards the calculation of benefit to the recipient, the following rules shall apply: (a) government provision of equity capital shall not be considered to confer a benefit, unless the investment can be regarded as inconsistent with the usual investment practice, including for the provision of risk capital, of private investors in the territory of the country of origin and/or export; (b) a loan by a government shall not be considered to confer a benefit, unless there is a difference between the amount that the firm receiving the loan pays on the government loan and the amount that the firm would pay for a comparable commercial loan which the firm could actually obtain on the market. In that event the benefit shall be the difference between those two amounts; (c) a loan guarantee by a government shall not be considered to confer a benefit, unless there is a difference between the amount that the firm receiving the guarantee pays on a loan guaranteed by the government and the amount that the firm would pay for a comparable commercial loan in the absence of the government guarantee. In that case the benefit shall be the difference between those two amounts, adjusted for any differences in fees; (d) the provision of goods or services or purchase of goods by a government shall not be considered to confer a benefit, unless the provision is made for less than adequate remuneration or the purchase is made for more than adequate remuneration. The adequacy of remuneration shall be determined in relation to prevailing market conditions for the product or service in question in the country of provision or purchase, including price, quality, availability, marketability, transportation and other conditions of purchase or sale. …’
16 Furthermore, various provisions of that regulation, in particular Article 9(3), Article 10(7) and (13), Article 11(6), (7) and (10), Article 13(1) to (3), Article 18(3), Article 29a(1) and Article 30(1) and (2) thereof, provide for various options for the benefit of, inter alia, the ‘country of origin or export’, the ‘government of the country of origin and/or export’, the ‘public bodies of the country of origin and/or export’ and the ‘government granting countervailable subsidies’.
17 The facts giving rise to the disputes, as set out in the judgments under appeal, may be summarised as follows.
18 Hengshi and Jushi are two undertakings established in Egypt and incorporated in accordance with the laws of that country. Each of them is the subsidiary of a parent undertaking established in China. Both parent undertakings are themselves wholly owned and controlled by a parent undertaking also established in China, called ‘China National Building Materials Co. Ltd’. The latter is a State undertaking which is indirectly wholly owned and controlled by the State-owned Assets Supervision and Administration Commission of the State Council, that authority itself attached to the State Council and controlled by it.
19 Hengshi and Jushi are active, in various respects, in the manufacturing, marketing and export sectors, in particular to the European Union, of glass fibre products used, inter alia, to create light composite materials which are used in areas such as the automotive, shipbuilding, aeronautical, wind energy and construction industries.
20 They are established in a geographical area known as the ‘China-Egypt Suez Economic and Trade Cooperation Zone’ (‘the SETC-Zone’).
21 Pursuant to a cooperation agreement signed on 21 January 2016 between the Government of China and the Government of Egypt, following a succession of joint initiatives, the SETC-Zone is subject to joint administration and development. For that purpose, the Government of Egypt grants certain tax exemptions to undertakings owned by Chinese or China-Egypt entities which are established in that area and provide them with the land and labour, under the conditions laid down by the applicable Egyptian legislation. For its part, the Government of China makes available, directly or indirectly, to those undertakings various financial resources, as part of the implementation of a global initiative entitled ‘Belt and Road’, in connection with which provision is made, inter alia, for Chinese undertakings that are going to establish themselves in third countries to benefit from various tax and financial measures in the form, for example, of loans, investments and credit insurance.
22 In May and June 2019, the European Commission initiated, pursuant to Articles 10 and 11 of Regulation 2016/1037, two investigation procedures concerning possible subsidies benefiting imports of certain glass fibre products into the European Union, following complaints lodged, respectively, by the undertaking Tech-Fab Europe eV (‘Tech-Fab Europe’) and by the Association des producteurs de fibres de verre européens (APFE) (European Glass Fibre Producers Association).
23 At the end of those investigations, the Commission first adopted, in June 2020, the regulation at issue in Case T‑480/20 and then the regulation at issue in Case T‑540/20. The regulations at issue both impose countervailing duties on the glass fibre products covered by those investigations which are imported into the European Union by Hengshi and Jushi, in relation to the first regulation, and Jushi, in relation to the second regulation, respectively. In those regulations, the Commission considered that Hengshi and Jushi had benefited, in the context of the implementation of the various initiatives referred to in paragraph 21 above, from a series of subsidies granted by the Government of Egypt. Some of the measures which were classified in that way are, in essence, according to the Commission, the result of cooperation between the Government of Egypt and the Government of China.
24 By application lodged at the Registry of the General Court on 28 July 2020, Hengshi and Jushi brought an action seeking the annulment of the regulation at issue in Case T‑480/20. In support of that action, they raised six pleas in law alleging infringement of Regulation 2016/1037 and, in respect of one of them, infringement of their rights of defence.
25 By document lodged at the Registry of the General Court on 20 October 2020, Tech-Fab Europe applied for leave to intervene in support of the form of order sought by the Commission.
26 By order of 26 January 2021, the President of the First Chamber of the General Court granted leave to intervene.
27 On 1 March 2023, the General Court handed down the judgment in T‑480/20, by which it dismissed the action as unfounded.
28 In parallel, by application lodged at the Registry of the General Court on 27 August 2020, Jushi brought an action seeking the annulment of the regulation at issue in Case T‑540/20. In support of that action, it raised five pleas in law alleging infringement of Regulation 2016/1037 and, in respect of two of them, infringement of Jushi’s rights of defence and of the Government of Egypt’s rights of defence. Subject to that latter aspect, those pleas are, in essence, identical to the second to sixth pleas in law raised in Case T‑480/20.
29 By document lodged at the Registry of the General Court on 14 December 2020, the APFE applied for leave to intervene in support of the form of order sought by the Commission.
30 By order of 28 April 2021, the President of the First Chamber of the General Court granted leave to intervene.
31 On 1 March 2023, the General Court handed down the judgment in T‑540/20, by which it dismissed the action as unfounded.
32 The pleas at first instance that are relevant for the purposes of the present appeals are as follows. In the first place, by the first part of the second plea in Case T‑480/20 and by the second part of the first plea in Case T‑540/20, the appellants had submitted, in identical terms, that the Commission had infringed Article 2(a) and (b) and Article 3(1) of Regulation 2016/1037 by considering, in essence, that certain financial contributions granted to them by the Government of China should also be regarded as subsidies which had been granted by the Government of Egypt or which could be attributed or imputed to the Government of Egypt. In support of that argument, they had put forward three separate complaints that the Commission’s reasoning was based, first, on an incorrect interpretation of the wording of those provisions of Regulation 2016/1037 and the context in which they occur; secondly, on the error in taking into account the Agreement on Subsidies and Countervailing Measures for the purpose of interpreting that regulation; and, thirdly, assuming that that agreement had to be taken into consideration, on an incorrect interpretation of that agreement in the light of Article 31 of the Vienna Convention on the Law of Treaties of 23 May 1969 (United Nations Treaty Series, Vol. 1155, p. 331; ‘the Vienna Convention’) and Article 11 of the Articles on State Responsibility for Internationally Wrongful Acts, drawn up by the International Law Commission of the United Nations Organisation. The General Court examined and rejected that entire line of argument in paragraphs 71 to 103 of the judgment in T‑480/20 and in paragraphs 38 to 70 of the judgment in T‑540/20.
33 In the second place, the General Court ruled on the second part of the second plea in law raised by Hengshi and Jushi in Case T‑480/20 and on the third part of the first plea in law raised by Jushi in Case T‑540/20. In that context, the appellants had claimed, in identical terms, that the Commission had infringed Article 4(2) and (3) of Regulation 2016/1037 by finding that certain financial contributions which had been granted to them by the Government of China constituted specific subsidies within the meaning of those provisions. In support of that argument, they had submitted, in essence, that, having regard to their wording and the context in which they occur, those provisions had to be interpreted as meaning that, in order to be classified as specific, a subsidy must have been granted, and therefore provided, by a specific authority to undertakings within its jurisdiction. In addition, they had claimed that, in the present case, such a requirement precluded the financial contributions granted by the Government of China to undertakings established in China and passed through them to their subsidiaries established in Egypt, as well as financial contributions granted directly by that government to those subsidiaries, from being classified as specific subsidies granted by an Egyptian authority. The General Court rejected that line of argument in paragraphs 106 to 109 of the judgment in T‑480/20 and in paragraphs 73 to 76 of the judgment in T‑540/20.
34 In the third place, the General Court ruled on the fourth plea in law raised by Hengshi and Jushi in Case T‑480/20 and on the third plea in law raised by Jushi in Case T‑540/20. In that context, the appellants had claimed, in identical terms, that the Commission had infringed Article 3(1)(a)(ii) and (2) and Article 5 of Regulation 2016/1037 by considering that the Government of Egypt had granted them a subsidy and, in so doing, conferred a benefit, by not collecting certain customs duties that are otherwise due on the importation into Egypt by Jushi of materials intended to be used, as inputs, to manufacture glass fibre products intended for export by Hengshi to the European Union. The General Court rejected that line of argument in paragraphs 162 to 171 of the judgment in T‑480/20 and in paragraphs 129 to 138 of the judgment in T‑540/20.
35 In the fourth place, the General Court ruled on the fifth plea in law raised by Hengshi and Jushi in Case T‑480/20 and on the fourth plea in law raised by Jushi in Case T‑540/20. In that context, the appellants had claimed, in identical terms, that the Commission had infringed Article 3(2) and Article 4(2)(c) of Regulation 2016/1037 by considering that the tax treatment given by the Government of Egypt to foreign exchange losses resulting from the devaluation of the Egyptian pound which occurred in 2016 constituted a subsidy creating de facto a specific benefit for a limited number of export-oriented undertakings operating the main part of their business in foreign currency, which included Hengshi and Jushi. The General Court rejected that line of argument in paragraphs 175 to 179 of the judgment in T‑480/20 and in paragraphs 142 to 146 of the judgment in T‑540/20.
36 In the fifth and last place, in Case T‑480/20, the General Court ruled on the first part of the first plea in law raised by Hengshi and Jushi. In that context, the appellants had claimed that the Commission had infringed, inter alia, Article 1(1), Article 5 and Article 6 of Regulation 2016/1037 by calculating the amount of countervailable subsidies granted to each of them. The General Court rejected that argument in paragraphs 32 to 58 of the judgment in T‑480/20.
37 By their appeal in Case C‑269/23 P, Hengshi and Jushi claim that the Court should: - set aside the judgment in T‑480/20; - annul the regulation at issue in Case T‑480/20, after disposing of that case; and - order the Commission and any intervening party to pay the costs incurred both at first instance and at the appeal stage.
38 By its appeal in Case C‑272/23 P, Jushi claims that the Court should: - set aside the judgment in T‑540/20; - annul the regulation at issue in Case T‑540/20, after disposing of that case; and - order the Commission and any intervening party to pay the costs incurred both at first instance and at the appeal stage.
39 The Commission contends that the Court should dismiss both appeals and order the appellants to pay the costs.
40 Tech-Fab Europe contends that the Court should dismiss the appeal in Case C‑269/23 P and order Hengshi and Jushi to pay the costs.
41 The APFE contends that the Court should dismiss the appeal in Case C‑272/23 P and order Jushi to pay the costs.
42 By decision adopted by the President of the Court of Justice on 8 December 2023, after hearing the parties, the two cases were joined for the purposes of the oral part of the procedure and the judgment.
43 In support of their claims in Case C‑269/23 P, Hengshi and Jushi raise five grounds of appeal.
44 In support of its claims in Case C‑272/23 P, Jushi raises four grounds of appeal, which are, in essence, identical to the second to fourth grounds of appeal in Case C‑269/23 P.
45 By their second ground of appeal in Case C‑269/23 P, alleging, in essence, an incorrect interpretation and application of Article 2(a) and (b) and Article 3(1) of Regulation 2016/1037, Hengshi and Jushi challenge the assessment of the General Court in paragraphs 81 to 103 of the judgment in T‑480/20. That ground of appeal is identical to the first ground of appeal in Case C‑272/23 P, by which Jushi challenges the assessment of the General Court in paragraphs 48 to 70 of the judgment in T‑540/20.
46 By that ground of appeal, which is common to both cases, and which corresponds to the pleas at first instance summarised in paragraph 32 above, the appellants claim that the General Court erred in law in finding that the Commission could consider that certain financial contributions granted to them by the Government of China, whether directly or through their parent undertakings, should also be regarded as subsidies which had been granted by the Government of Egypt or which could be attributed or imputed to the Government of Egypt.
47 In that regard, the appellants claim, in the first place, that that legal classification and the underlying interpretation, as stated in paragraphs 81 to 85 and 92 to 95 of the judgment in T‑480/20 and in paragraphs 48 to 52 and 59 to 62 of the judgment in T‑540/20, are incompatible with the wording of Article 2(a) and (b) and Article 3(1) of Regulation 2016/1037, understood in the light of the context in which those provisions occur and the objective pursued by that regulation.
48 According to the appellants, first of all, Article 2(a) and (b) and Article 3(1) of Regulation 2016/1037 state clearly and precisely, in their various language versions, that the concept of ‘subsidy’ includes only financial contributions which come from ‘a government in the country of origin or export’, understood, as a general rule, as encompassing ‘a government or any public body within the territory’ of that country, subject to a single exception, relating to the situation in which such bodies entrust or direct ‘a private body’ to carry out the functions which would normally be vested in the government. Those provisions do not therefore permit the inclusion in that concept of financial contributions originating in the government of another country. Furthermore, those provisions refer to the subsidies which are ‘granted by’ the government in question and not to those which are ‘attributable’ or ‘imputable’ to them. That concept can therefore include only subsidies which directly come from that government, subject to the exception provided, expressly and exhaustively, where a private body acts on behalf of the latter.
49 Next, that interpretation is supported by the context in which Article 2(a) and (b) and Article 3(1) of Regulation 2016/1037 occur. In particular, Article 10(7) and Article 13(1) of that regulation grant a set of rights and powers to the country of origin or export. On the other hand, nothing of the kind would be envisaged for the benefit of other countries, in the event that the interpretation adopted by the General Court were accepted.
50 Lastly, recital 4 of Regulation 2016/1037 states that the objective of that measure is, inter alia, to explain, in adequate detail, when a subsidy is to be deemed to exist, which does not include the condition relating to the possibility of attributing or imputing a financial contribution from the government of the country of origin or export, thus granted by that government, to the government of another country. More generally, the EU legislature did not intend to bring foreign direct investment within the scope of that regulation.
51 According to the appellants, in the second place, the interpretation of Regulation 2016/1037 adopted by the General Court cannot be regarded as justified in the light of the Agreement on Subsidies and Countervailing Measures.
52 Contrary to what the General Court stated in paragraphs 96 to 100 of the judgment in T‑480/20 and in paragraphs 63 to 67 of the judgment in T‑540/20, the wording of Article 2(a) and (b) and Article 3(1) of Regulation 2016/1037 is in part different from that of Article 1 of that agreement. In particular, unlike the latter, which provides that the concept of ‘government’ includes generally ‘a government or any public body within the territory of a Member’, the former stated that that concept includes only ‘a government or public body within the territory of the country of origin or export’. That difference of wording should be ascribed a meaning.
53 In any event, according to the appellants, contrary to what the General Court stated in paragraphs 101 and 102 of the judgment in T‑480/20 and in paragraphs 68 and 69 of the judgment in T‑540/20, Article 1 of the Agreement on Subsidies and Countervailing Measures, the terms of which should be interpreted in accordance with the rules laid down in Article 31 of the Vienna Convention, makes it clear that that agreement also does not enable a financial contribution from the government of one WTO member to be classified as a subsidy attributable to the government of another WTO member. It is apparent from that Article 1 that a financial contribution ‘from’ a government or a public body ‘within the territory’ of that member constitutes a subsidy ‘made by a “government” of a Member’. In addition, that article does not provide for the possibility of attributing such a financial contribution to the government of another member. Lastly, the context in which those terms must be understood and the objective pursued by the Agreement on Subsidies and Countervailing Measures support such an interpretation.
54 The Commission, supported by the APFE and Tech-Fab Europe, disputes the merits of those arguments in their entirety.
55 In so far as the appellants claim that the judgments under appeal are vitiated by errors of law, consisting of, in essence, the General Court’s review of the legality of the regulations at issue by relying not only on a misinterpretation of Regulation 2016/1037, but also on a misunderstanding of the legal relationship which exists between that regulation and the Agreement on Subsidies and Countervailing Measures and on a misinterpretation of that agreement, it is necessary to determine, as a preliminary point, whether and, if so, on what basis that agreement must be taken into consideration by the Court of Justice.
56 In that regard, in the first place, it is settled case-law that the provisions of an international agreement to which the European Union is a party can be relied upon in support of an action for annulment of an act of secondary EU legislation, of a plea that such an act is invalid or of an action for compensation only if, first, the nature and the broad logic of that international agreement do not preclude this and, secondly, the provisions of that international agreement which are relied upon appear, as regards their content, to be unconditional and sufficiently precise (judgments of 3 June 2008, Intertanko and Others, C‑308/06, EU:C:2008:312, paragraphs 43 and 45; of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 84; and of 28 September 2023, Changmao Biochemical Engineering v Commission, C‑123/21 P, EU:C:2023:708, paragraph 69).
57 The Court of Justice has repeatedly held that, taking account of their nature and purpose, the Agreement establishing the WTO and the agreements listed in Annexes 1 to 4 to that agreement do not, in principle, constitute rules in the light of which the Court is to review the legality of acts of secondary EU legislation (judgments of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 38 and the case-law cited; of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 85; and of 28 September 2023, Changmao Biochemical Engineering v Commission, C‑123/21 P, EU:C:2023:708, paragraph 71).
58 Therefore, the Agreement on Subsidies and Countervailing Measures, which is contained in Annex 1A to the Agreement establishing the WTO, does not, in principle, constitute such a standard.
59 That being said, in two exceptional situations, demonstrating the EU legislature’s intention to limit its discretion in the application of the WTO rules, it is for the Courts of the European Union to review the legality of an act of secondary EU legislation or of the measures implementing it in the light of the Agreement establishing the WTO or the agreements listed in Annexes 1 to 4 to that agreement. The first such situation is where the European Union intended to implement, in that act, a particular obligation assumed in the context of those WTO agreements and the second is where that act refers explicitly to specific provisions of those agreements (judgments of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraphs 40 and 41; of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 87; and of 28 September 2023, Changmao Biochemical Engineering v Commission, C‑123/21 P, EU:C:2023:708, paragraphs 74 and 75).
60 As is apparent from the case-law of the Court, any intention on the part of the European Union to implement a particular obligation assumed in the context of the agreements in question is distinct from the duty of every WTO member to ensure, within the framework of its internal legal order and throughout its territory, compliance with obligations under WTO law (see, to that effect, judgment of 6 October 2020, Commission v Hungary (Higher education), C‑66/18, EU:C:2020:792, paragraph 85). That intention and the particular obligation to which it relates must, therefore, be apparent from a specific provision of the act of secondary EU legislation concerned in a given case (see, to that effect, judgments of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraphs 45 and 46, and of 28 September 2023, Changmao Biochemical Engineering v Commission, C‑123/21 P, EU:C:2023:708, paragraph 79).
61 In the present case, it must be stated, first of all, that none of the provisions of Regulation 2016/1037 on which the appellants rely in the context of the present ground of appeal reveals any intention on the part of the EU legislature to implement, in that act, a particular obligation assumed in the context of the Agreement on Subsidies and Countervailing Measures or, more broadly, the Agreement establishing the WTO and the agreements in Annexes 1 to 4 thereto.
62 Next, none of those provisions refers expressly to the specific provisions of those agreements.
63 Lastly, while it is true that recital 3 of Regulation 2016/1037 states that it is appropriate that ‘the language of [the Agreement on Subsidies and Countervailing Measures] should be reflected in [European] Union legislation to the best extent possible’, that expression must be understood as meaning that, although the EU legislature intended to implement the provisions of that agreement when it adopted that regulation, nonetheless it did not intend to make that agreement a standard by reference to which the legality of measures of secondary EU legislation could be reviewed (see, by analogy, judgments of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 52, and of 28 September 2023, Changmao Biochemical Engineering v Commission, C‑123/21 P, EU:C:2023:708, paragraph 78).
64 The General Court was therefore wrong to hold, in paragraph 99 of the judgment in T‑480/20 and paragraph 66 of the judgment in T‑540/20, that Article 3(1)(a) of Regulation 2016/1037 was intended to implement a particular obligation assumed by the European Union in the context of the WTO. That being said, since that assessment, introduced by the expression ‘furthermore’, was carried out by the General Court for the sake of completeness, the error of law thus committed is not capable of leading to the setting aside of the judgment under appeal.
65 In the second place, it is nevertheless apparent from the settled case-law of the Court that the primacy of international agreements concluded by the European Union over measures of secondary EU legislation requires that the latter be interpreted, so far as possible, in a manner consistent with those agreements, in particular where such acts are intended to implement such agreements, in so far as their provisions are substantially the same (see, to that effect, judgments of 8 September 2015, Philips Lighting Poland and Philips Lighting v Council, C‑511/13 P, EU:C:2015:553, paragraphs 60 and 63, and of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraphs 30 and 31). Furthermore, that interpretation must be given, so far as possible, in accordance with the relevant rules and principles of general international law, observance of which is required of the European Union in the exercise of its powers when adopting those measures (see, to that effect, judgments of 3 September 2008, Kadi and Al Barakaat International Foundation v Council and Commission, C‑402/05 P and C‑415/05 P, EU:C:2008:461, paragraph 291, and of 1 August 2022, Sea Watch, C‑14/21 and C‑15/21, EU:C:2022:604, paragraph 92).
66 In particular, the general principle of international law that treaty obligations should be observed and performed in good faith (pacta sunt servanda) enshrined in Article 26 of the Vienna Convention implies that the Courts of the European Union must, for the purpose of interpreting the Agreement establishing the WTO and the agreements in Annexes 1 to 4 thereto, take account of the interpretation of those agreements adopted by the WTO Dispute Settlement Body (DSB). In the absence of such an interpretation, it is for the Court of Justice alone to interpret those agreements in accordance with customary rules of interpretation of international law that are binding on the European Union (see, to that effect, judgments of 6 October 2020, Commission v Hungary (Higher education), C‑66/18, EU:C:2020:792, paragraph 92, and of 20 January 2022, Commission v Hubei Xinyegang Special Tube, C‑891/19 P, EU:C:2022:38, paragraph 32).
67 In the present case, the wording of Article 3(1) of Regulation 2016/1037 is substantially the same, in many respects, as that of Article 1 of the Agreement on Subsidies and Countervailing Measures, but contains differences which must be taken into consideration. It is therefore important to ensure, so far as possible, that the interpretation of that provision is consistent with that article or, as regards the aspects on which that provision differs from that article, that it does not run counter to the European Union’s obligations under the WTO (see, to that effect, judgment of 14 July 1988, Fediol v Commission, 188/85, EU:C:1988:400, paragraph 13).
68 Moreover, since, as has been acknowledged by the parties, the DSB has not yet clarified the meaning and scope of Article 1 of the Agreement on Subsidies and Countervailing Measures in a situation such as that referred to in the judgments under appeal and, before them, by the regulations at issue, it is for the Court alone to interpret that article, in accordance with the detailed rules set out in paragraph 66 above, to the extent necessary to rule on the grounds of appeal raised by the appellants.
69 The disagreement between the parties concerns, in essence, the identity of the persons from whom a subsidy must come in order to be classified as such under Regulation 2016/1037. It is therefore necessary to determine whether and, if so, how that identity is governed by that act, bearing in mind that the provisions of that act must be interpreted, in accordance with the settled case-law of the Court, taking into account not only their wording but also the context in which they occur and the objectives pursued by the rules of which they form part (judgments of 7 June 2005, VEMW and Others, C‑17/03, EU:C:2005:362, paragraph 41, and of 1 August 2022,Sea Watch, C‑14/21 and C‑15/21, EU:C:2022:604, paragraph 115), as the General Court recalled, in essence, in paragraph 78 of the judgment in T‑480/20 and in paragraph 45 of the judgment in T‑540/20.
70 As regards, in the first place, the wording of the provisions of Regulation 2016/1037, it should be stated, first of all, that Article 3(1)(a) of that regulation defines the concept of ‘subsidy’ from both a substantive and a personal point of view.
71 From a substantive point of view, it is apparent, in essence, from Article 3(1)(a) that a subsidy consists in a financial contribution which may be a practice involving a direct transfer of funds, forgoing or not collecting revenue that is otherwise due, a provision or purchase of goods or services, or a payment to a funding mechanism.
72 From a personal point of view, Article 3(1)(a) states, in essence, in its various language versions, that, whatever its form and nature, that financial contribution must in all cases come from ‘the government’ (or ‘the public bodies’) of (or in the) ‘country of origin’ or ‘country of export’, subject to a single exception, relating to the situation in which that government entrusts or directs a private body with the obligation to make a financial contribution on its behalf. It follows that, subject to that exception, only a financial contribution having as its provider the government of the country of origin or the country of export, therefore having their origin in the conduct of those authorities, may be classified as a subsidy within the meaning of Regulation 2016/1037.
73 Next, Article 2 of Regulation 2016/1037 defines, among other concepts, that of ‘government’ and specifies the nature of the link which must connect it with the various forms of financial contributions referred to in Article 3(1)(a) of that regulation in order for them to be classified as ‘subsidies’, provided that the other conditions for such a classification are satisfied. As regards the concept of ‘government’, Article 2(b) of that regulation states that it includes ‘any public body within the territory’ of the country of origin or the country of export, the latter corresponding to the intermediate country to which a product has been exported from the country of origin and then from which it has been imported into the European Union. As regards the link which must connect the government of one or other of those countries to a financial contribution in a given case, Article 2(a) of that regulation states that it consists in, for that government, ‘grant[ing]’ that financial contribution. Having regard to the sentence in which it is used, that term must be understood, in accordance with its usual meaning, as referring to conduct by which a person gives or allocates something to another person, whether by formally granting it or by allowing him or her in practice to benefit from it.
74 Lastly, none of those provisions, nor any other provision of Regulation 2016/1037, explicitly specifies or circumscribes, from any other perspective, the legal and practical conditions and arrangements under which a financial contribution may or must be regarded as having been granted by the government of the country of origin or export.
75 In those circumstances, having regard to the wording of Article 2(a) and (b) and Article 3(1)(a) of Regulation 2016/1037, it must be held that, in order to be able to classify a financial contribution as a ‘subsidy’, those various provisions require it to be demonstrated, in any event, that that financial contribution was granted to one or more persons specified by the government of the country of origin or the country of export of a given product, in the sense that a public body within the territory of one or other of those countries has adopted conduct consisting in either formally granting that financial contribution to those persons or allowing them in practice to benefit from it. In both cases, that conduct must have played a decisive role in the allocation of such a financial contribution.
76 By contrast, neither Article 2(a) and (b) nor Article 3(1)(a) of Regulation 2016/1037 contains any sign or indication to require or permit the inference that the existence of a subsidy must have such conduct as its sole origin.
77 In particular, from a personal point of view, those provisions contain nothing to prevent a subsidy from being classified as a subsidy where a financial contribution is made by the government of a country other than the country of origin or export, provided that it is demonstrated, in the light of the conduct of the government of the country of origin or export, that that government can be regarded as having granted that financial contribution.
78 Moreover, from a substantive point of view, certain types of financial contributions listed in Article 3(1)(a) of Regulation 2016/1037 may be characterised by the existence of such a situation, such as those consisting in enabling, for the government of the country of origin or export, by their conduct, the supply to one or more specific persons of funds or goods from the government of another country. The same is true of certain types of financial contributions listed in Article 6 of that regulation, whether that be, for example, a provision of equity capital, a loan or a loan guarantee.
79 As regards, in the second place, the context in which Articles 2 and 3 of Regulation 2016/1037 occur, it should be noted, first, that Article 1 of that regulation states, as is apparent from its very title, two principles of cross-cutting importance for the purposes of the interpretation and application of that regulation.
80 Accordingly, Article 1(1) provides that a countervailing duty may be imposed to offset ‘any subsidy granted, directly or indirectly’, for the manufacture, production, export or transport of a product. That provision adopts a broad definition of the concept of ‘subsidy’, evidenced by the use not only of the wording ‘any’ but also of the wording ‘directly or indirectly’, which may relate both to the manner in which a subsidy is granted and to the person benefiting from it and the person granting it. That provision supports, to that extent, the idea that the scope of the concept of ‘subsidy’ used in Regulation 2016/1037 may include, inter alia, the situation in which the government of the country of origin or export formally grants one or more persons, or in practice allows them to receive, a financial contribution originating with, in whole or in part, the government of another country.
81 Furthermore, it is apparent from Article 1(2) of Regulation 2016/1037 that that regulation is applicable both where a subsidy is granted by the government of the country of origin of a product and by the country of export of that product. Although that principle precludes the possibility of classifying as a subsidy, as such, a financial contribution from another country, it does, on the other hand, allow such a classification if the requirement described in paragraph 77 above is met.
82 Secondly, recital 5 of Regulation 2016/1037, in the light of which Articles 1 to 3 of that regulation must be interpreted, also states that, in order to establish the existence of a subsidy, it is necessary to demonstrate, inter alia, ‘the granting of a financial contribution by a government or any public body in the territory of a country’, which may be done, inter alia, by proving that, by its conduct, that government has formally granted or allowed in practice one or more persons to benefit from a financial contribution coming from, in whole or in part, the government of another country.
83 As regards, in the third and last place, the objective of Regulation 2016/1037, it is apparent from paragraph 80 above that it is to enable the European Union to offset any subsidy granted, directly or indirectly, by the governments of third countries in which goods originate or from which goods are imported, under the conditions laid down in that regulation.
84 In particular, it must be held, in view of the wording used in Articles 2 and 6 of that regulation, that such a subsidy may take the form of a foreign investment, made by the government of a given third country, in one or more undertakings established in another third country, provided that the conduct of that government permits the inference that they granted that financial contribution to that undertaking or those undertakings, by formally granting it to them or by allowing them in practice to benefit from it.
85 In that regard, it must be borne in mind that foreign investments, namely investments of any kind carried out by investors established in a given country in undertakings or in organisations carrying out an economic activity in other countries, with a view to establishing, developing or maintaining lasting relations with those undertakings or bodies, where necessary by controlling or influencing them, fall within the exclusive competence of the European Union - and more specifically within the common commercial policy, of which Regulation 2016/1037 forms part - where they are direct and within the shared competence of the European Union where they are not direct (see, to that effect, judgments of 18 July 2013, Daiichi Sankyo and Sanofi-Aventis Deutschland, C‑414/11, EU:C:2013:520, paragraph 45, and of 2 September 2021, Republic of Moldova, C‑741/19, EU:C:2021:655, paragraph 26).
86 Consequently, Article 2(a) and (b) and Article 3(1)(a) of Regulation 2016/1037 must be interpreted, in the light of their wording, the context in which they occur and the objective pursued by that regulation, as allowing the Commission to apply the legal classification of ‘subsidy’ to a financial contribution coming from, in whole or in part, the government of a third country other than the country of origin or export of a given product, where it is shown that that financial contribution may be considered to have been granted by the government of that country of origin or export, having regard to its own conduct. The General Court did not, therefore, err in law by ruling, in essence, to that effect in paragraphs 81 to 84 and 95 of the judgment in T‑480/20 and in paragraphs 48 to 51 and 62 of the judgment in T‑540/20.
87 That interpretation is not called into question by the argument of the appellants based on Article 10(7) and Article 13(1) of Regulation 2016/1037. In any situation falling within the scope of that regulation, the government of the country of origin or export which may be regarded as having granted a subsidy may exercise the various options provided for in those provisions, in the same way, moreover, as those provided for in the other provisions listed in paragraph 16 above. Furthermore, it is open to such a government, with a view to or in connection with that exercise, to consult with the government of the third country from which all or part of the financial contribution which may be classified as a ‘subsidy’ originates. Finally, it is for that government to eliminate or limit that subsidy, for example by altering its conduct, or to take other measures relating to its effects.
88 In accordance with the case-law cited in paragraphs 65 and 66 above, it is still necessary, in order to ascertain whether the interpretation adopted in paragraph 86 of that judgment is consistent with the Agreement on Subsidies and Countervailing Measures and with the EU’s obligations under WTO law, to determine whether that interpretation is, if not consistent, at least compatible with that agreement and with those obligations. Since the European Union is a party to that international agreement, the latter must, itself, be interpreted, in accordance with the settled case-law of the Court, by having recourse to the relevant rules of customary international law, as reflected in Article 31 of the Vienna Convention, which are binding on the EU institutions and form part of the EU legal order (judgment of 27 February 2018, Western Sahara Campaign UK, C‑266/16, EU:C:2018:118, paragraph 58 and the case-law cited).
89 According to Article 31(1), a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to its terms in their context, as defined in paragraph 3 of that article, and in the light of its object and purpose.
90 In that regard, it should be noted, first, as, in essence, the General Court stated in paragraph 98 of the judgment in T‑480/20 and paragraph 65 of the judgment in T‑540/20, that Article 1(1.1)(a)(1) of the Agreement on Subsidies and Countervailing Measures is worded in substantially identical terms to those of Article 3(1) of Regulation 2016/1037, subject to one particular point. Unlike that regulation, Article 1(1.1)(a)(1), in its French-language version, defines the concept of ‘subsidy’ as meaning any ‘financial contribution by a government or any public body within the territory of a Member’. The Spanish- and English-language versions of that article, which are equally authentic, are worded identically. In other words, in the light of its wording, that regulation, read in isolation, may be interpreted, unlike Article 3(1) of Regulation 2016/1037, as meaning that any financial contribution from the government of any member country of the WTO may be classified as a subsidy, irrespective of any link between that government and the country from which particular products are exported.
91 As regards, secondly, the context in which Article 1(1.1)(a)(1) of the Agreement on Subsidies and Countervailing Measures occurs, it should be noted that Article 2(2.1) and (2.2) of that agreement provides, in its French-language version, that a subsidy must, moreover, be specific either to an undertaking, a group of undertakings, an industry or a group of industries ‘within the jurisdiction of the granting authority’ or to ‘certain [undertakings] located within a designated geographical region within the jurisdiction of the granting authority’. The Spanish- and English-language versions of that Article 2, for their part, use the wording ‘dentro de la jurisdicción de la autoridad otorgante’ and ‘within the jurisdiction of the granting authority’. That Article 2 thus establishes a link between the government granting a subsidy and the undertaking or undertakings to which such a subsidy is granted and, consequently, the products produced by the undertaking or undertakings to which such a subsidy is granted.
92 Taken together, Article 1(1.1)(a)(1) and Article 2 of the Agreement on Subsidies and Countervailing Measures therefore appear, in reality, to limit the scope of the concept of ‘subsidy’ to financial contributions granted by the government of the country of origin of those products, in so far as that country is a member of the WTO. Article 11(8) of that agreement confirms that interpretation, while extending the scope of that concept to financial contributions granted by the government of the intermediate country to which those products are exported from the country of origin, from which they are then imported into the country of destination, as does Regulation 2016/1037.
93 That being said, none of the three provisions referred to in the preceding paragraph contains any sign or indication justifying the exclusion from the scope of that concept financial contributions which, although they may be regarded as being granted by such a government, having regard to the conduct of that government itself, nonetheless come from, in whole or in part, the government of another member country of the WTO. To that extent also, those provisions appear to be consistent with the textual and contextual elements of Regulation 2016/1037 which form the basis of the interpretation set out in paragraph 86 above.
94 The same applies, moreover, to Article 5 of the Agreement on Subsidies and Countervailing Measures, which states that no member of the WTO should cause, through the use of a subsidy, adverse effects with regard to the interests of another WTO member. That article may also be interpreted as meaning that such a member is prohibited from acting in that manner not only by granting such a subsidy, but also by conduct allowing one or more undertakings established in its territory or within its jurisdiction to benefit from a subsidy originating with, in whole or in part, another member of the WTO. That may be the case, in particular, where the establishment of legislation, the adoption of a decision, the grant of an authorisation or the use of any other measure by a WTO member is necessary in order to enable that undertaking or those undertakings to obtain, in its territory, a financial contribution from that other member, whether that need is legal or arises from the fact that that other member has, in practice, made entitlement to that financial contribution subject to such legislation, decision, authorisation or other measure.
95 Moreover, some of the types of financial contributions listed in Article 1(1.1)(a)(1)(i) to (iv) of the Agreement on Subsidies and Countervailing Measures, which correspond to those listed in Article 3(1)(a) of Regulation 2016/1037, may be characterised by the existence of such a situation, as has been pointed out in paragraph 78 above.
96 It is therefore apparent that the concept of subsidy, as interpreted in paragraph 86 above, does not run counter to the obligations of the European Union arising from the terms of the Agreement on Subsidies and Countervailing Measures, understood in their context.
97 Thirdly, although that agreement does not contain any provision setting out its object and purpose, on the one hand, and is not preceded by a preamble capable of containing indications in that regard, on the other, it is apparent from the WTO Appellate Body report of 28 November 2002, entitled ‘United States - Countervailing duties on certain corrosion-resistant carbon steel flat products from Germany’ (WT/DS213/AB/R, paragraph 73) and the report of 11 March 2011, entitled ‘United States - Definitive anti-dumping and countervailing duties on certain products from China’ (WT/DS379/AB/R, paragraph 543), which were adopted by the DSB on 19 December 2002 and 25 March 2001 respectively, that the main object and purpose of that agreement are to ‘increase and improve GATT disciplines relating to the use of both subsidies and countervailing measures’, under the conditions and limitations provided for in that agreement.
98 That object and that purpose of strengthening and improving multilateral discipline in the field of subsidies are such as to corroborate the textual and contextual interpretation of the Agreement on Subsidies and Countervailing Measures set out in paragraphs 90 to 95 above, rather than to call it into question. They encourage preference to be given to an interpretation of the terms of that agreement, and more particularly of the concept of a ‘subsidy granted by a government’, which takes account of the increased internationalisation of undertakings participating in world trade and of the support, sometimes decisive, from which they may benefit in that context, in the form of financial contributions which are granted as a result of assistance or the action of the governments of several member countries of the WTO.
99 At the very least, that object and that purpose do not run counter to an interpretation of Regulation 2016/1037 to that effect.
100 The General Court therefore did not err in law in ruling to that effect in paragraph 103 of the judgment in Case T‑480/20 and in paragraph 70 of the judgment in Case T‑540/20.
101 Consequently, the present ground of appeal must be rejected as unfounded.
102 By their third ground of appeal in Case C‑269/23 P, alleging, in essence, an incorrect interpretation and application of Article 4(2) and (3) of Regulation 2016/1037, Hengshi and Jushi challenge the assessment of the General Court in paragraphs 106 to 109 of the judgment in T‑480/20. That ground of appeal is identical to the second ground of appeal in Case C‑272/23 P, by which Jushi challenges the assessment of the General Court in paragraphs 73 to 76 of the judgment in T‑540/20.
103 By that ground of appeal, which is common to both cases, and which corresponds to the pleas at first instance summarised in paragraph 33 above, the appellants submit, in essence, that the General Court erred in law in finding that the Commission was entitled to find that the Egyptian authorities had the status of authorities which granted the subsidies at issue, since those subsidies consisted of financial contributions which had been allocated to the appellants by the Government of China, directly or through their parent undertakings established in China.
104 According to the appellants, although the purpose of Article 4(2) and (3) of Regulation 2016/1037 is to define the meaning, not of the concept of ‘subsidy’ as such, but of the condition of ‘specificity’ which must be satisfied, inter alia, in order for a subsidy to give rise to the imposition of countervailing duties, those provisions also make it clear that a financial contribution granted by the government of a given country cannot be classified as a subsidy imputable or attributable to an authority belonging to the government of another country. In particular, those provisions refer, in their various language versions, to ‘the granting authority’, that is to say to the authority which gives or allocates the subsidy to one or more persons. In so doing, they rule out the possibility that an authority may be regarded, by imputation or by attribution, as having granted a subsidy in a situation where that subsidy was granted or given not by that authority but by another authority belonging to the government of another country. In the present case, only the Chinese authorities could have been classified in that way, to the exclusion of authorities such as the Egyptian authorities.
105 The Commission, supported by the APFE and Tech-Fab Europe, disputes those arguments.
106 Article 4(1) of Regulation 2016/1037 states that subsidies are countervailable only if they are specific within the meaning of paragraphs 2 to 4 of that provision. Article 4(2) and (3) thus lays down the principles and rules to be applied in order to determine whether a subsidy is specific to an undertaking, an industry, a group of undertakings or industries, or to certain undertakings located within a designated geographical region, stating, in essence, that those different types of recipient must, in any event, be within the jurisdiction of the granting authority.
107 In that regard, it should be noted that it is true that Article 4 of Regulation 2016/1037 uses the term ‘authority’, and thus a term which differs from the expression ‘government’ in Article 2(a) of that regulation. However, in order to specify the nature of the link which must connect a financial contribution that may be classified as a ‘subsidy’ with the government or an authority of a given third country, those two provisions use the same verb, namely the verb ‘to grant’.
108 That verb must, therefore, be understood in the same way with regard to each of those provisions, as referring to conduct by which a person gives or allocates something to another person, whether by formally granting it or by allowing him or her in practice to benefit from it, as stated in paragraph 73 above.
109 It follows from paragraphs 86 and 94 above that that term must be interpreted as including both conduct by which the government of the country of origin or export of a given product formally grants to one or more specific persons a financial contribution originating with, in whole or in part, the government of another third country and conduct by which the government of that country of origin or export in practice allows those persons to benefit from that financial contribution, such as the establishment of legislation, the adoption of a decision, the grant of an authorisation or the use of any other measure necessary for that purpose.
110 That term therefore also applies to the specific authority, within the government of the country of origin or export concerned, which is responsible for the conduct in question.
111 Therefore, in finding, in paragraphs 107 and 108 of the judgment in T‑480/20 and in paragraphs 74 and 75 of the judgment in T‑540/20, that authorities such as, in the present case, the Egyptian authorities could be classified by the Commission as authorities which granted the subsidies at issue, the General Court did not err in law.
112 Consequently, the present ground of appeal must be rejected as unfounded.
113 By their fourth ground of appeal in Case C‑269/23 P, alleging, in essence, an incorrect interpretation and application of Article 3(1)(a)(ii), Article 3(2) and Article 5 of Regulation 2016/1037, Hengshi and Jushi challenge the assessment of the General Court in paragraphs 167 to 169 of the judgment in T‑480/20. That ground of appeal is identical to the third ground of appeal in Case C‑272/23 P, by which Jushi challenges the assessment of the General Court in paragraphs 134 to 136 of the judgment in T‑540/20.
114 By that ground of appeal, which is common to both cases, and which corresponds in part to the pleas at first instance summarised in paragraph 34 above, the appellants submit, in essence, that the General Court erred in law in holding that the Commission was entitled to find that the Government of Egypt had granted them a subsidy and, in so doing, conferred a benefit, by failing to levy certain customs duties that are otherwise due on the importation into Egypt by Jushi of materials intended to be used, as inputs, to manufacture glass fibre products intended for export by Hengshi to the European Union.
115 According to the appellants, as the General Court correctly pointed out in paragraph 164 of the judgment in T‑480/20 and in paragraph 131 of the judgment in T‑540/20, the provisions of the Agreement on Subsidies and Countervailing Measures which correspond to Article 3(1)(a)(ii) and Article 3(2) of Regulation 2016/1037 are interpreted by the WTO Appellate Body as meaning that, in order to determine whether or not government revenue ‘otherwise due’ has been forgone or not collected and whether that forgoing or non-collection has conferred a ‘benefit’ on certain undertakings, it is necessary to compare the situation of those undertakings with that of taxpayers in a comparable situation. Consistently, it must be held, in the light of the wording of Article 5 of Regulation 2016/1037, that the amount of that benefit must be calculated on the basis of the situation of those undertakings. In the present case, contrary to what was held by the General Court, the Commission reasoned in relation to a reference situation which should be regarded as inappropriate taking account of, first, the nature of the transactions which, in its view, gave rise to non-collection of customs duties, secondly, the legal and economic situation of the undertakings which allegedly benefited from that non-collection, thirdly, the relevant Egyptian regulations and, fourthly, the corresponding administrative practice, namely that of an undertaking established in the SETC-Zone instead of that of an undertaking established outside that zone.
116 The Commission, supported by the APFE and Tech-Fab Europe, disputes the admissibility of a part of those arguments and the merits of those arguments in their entirety.
117 By the present ground of appeal, the appellants challenge, in essence, one of the factors on which the General Court relied in the judgments under appeal, and on which the Commission also relied in the regulations at issue, in order to examine whether there was, in the present case, a subsidy in the form of government revenue that is forgone, as envisaged in Article 3(1)(a)(ii) of Regulation 2016/1037. That factor is the reference situation to be considered for the purposes of such an examination.
118 In that regard, it follows from Article 3(1) and (2) of Regulation 2016/1037 that, in order to be classified as a ‘subsidy’, it is necessary to demonstrate not only that there is a financial contribution by the government of the country of origin or export, but also that a benefit is thereby conferred.
119 As regards the first of those two conditions, Article 3(1)(a)(ii) of that regulation provides that such a financial contribution may consist in, inter alia, the government forgoing or not collecting government revenue that would otherwise be due.
120 Since that provision is worded in terms identical to those of Article 1(1.1)(a)(1)(ii) of the Agreement on Subsidies and Countervailing Measures, it must be interpreted, so far as possible, in a manner which ensures its conformity with that agreement and taking account of the way in which it may have been interpreted by the DSB, in accordance with the case-law cited in paragraphs 65 and 66 above.
121 As the General Court correctly pointed out in paragraph 164 of the judgment in T‑480/20 and in paragraph 131 of the judgment in T‑540/20, it is apparent, in particular, from the reports of the WTO Appellate Body of 12 March 2012 and 28 March 2019, entitled ‘United States - Measures affecting trade in large civil aircraft (second complaint)’ (WT/DS353/AB/R, paragraphs 806 to 809 and 812, and WT/DS353/AB/RW, paragraphs 5.146 and 5.147), in which that body summarised and clarified its decision-making practice in that regard, and which were adopted by the DSB on 23 March 2012 and 11 April 2019 respectively, that, in order to determine whether government revenue that would otherwise be due has been forgone or has not been collected, it is necessary, as a general rule, to make a comparison between the tax treatment applicable to the alleged recipients of such a measure and the tax treatment of the comparable income of taxpayers in a comparable situation. That body also stated, in essence, that, even if the identification of the reference situation to be adopted for the purposes of such a comparison may be complex, having regard, in particular, to the applicable national legislation, any relevant administrative or tax practices and the specific conduct of the competent authorities, the legitimate and rational nature of the reference situation adopted in a given case must nevertheless be reviewed.
122 Furthermore, as the appellants rightly point out, that decision-making practice of the WTO Appellate Body has been applied, by analogy, to measures consisting in an alleged non-collection of customs duties, the examination of which involves comparing the revenue actually collected in connection with an operation such as the import of given products with the revenue that is otherwise due in a comparable situation, as is apparent, inter alia, from the WTO Panel Report of 31 October 2019, entitled ‘India - Export-related measures’ (WT/DS541/R, paragraphs 7.297 to 7.302, 7.317 and 7.333).
123 In the light of that decision-making practice, it must be held that, in order to determine whether there is a financial contribution consisting in, for the government of the country of origin or export, forgoing or not collecting ‘government revenue that is otherwise due’ within the meaning of Article 3(1)(a)(ii) of Regulation 2016/1037, it is necessary, as a general rule, to make a comparison between, on the one hand, the treatment applicable to the alleged recipients of such a measure and the revenue actually received by the public authorities from them and, on the other hand, the treatment of comparable income or transactions and the revenue that would otherwise be due in the presence of that comparable income or those comparable transactions. That comparison must be made in the light of all the relevant evidence that is available.
124 That being said, since identification of the reference situation to be used for the purposes of such a comparison may be complex, in that it may depend not only on the applicable national legislation but also on any relevant administrative, tax or customs practices and the specific conduct of the competent authorities, that is to say, on several aspects of the legal and institutional system of a third country, that operation must be subject to judicial review which takes account of that complexity.
125 In that regard, it is settled case-law of the Court that, in the sphere of the common commercial policy and in particular measures to protect trade, the EU institutions enjoy a broad discretion by reason of the complexity of the economic and political situations which they have to examine, with the result that judicial review of that broad discretion must be limited to verifying whether the relevant procedural rules have been complied with, whether the facts relied on have been accurately stated, whether there has been a manifest error of appraisal of those facts and whether there has been any error in the legal characterisation of the facts or a misuse of powers (see, to that effect, judgment of 12 May 2022, Commission v Hansol Paper, C‑260/20 P, EU:C:2022:370, paragraph 58 and the case-law cited).
126 As regards, more specifically, the review of whether there has been a manifest error of assessment of the facts, the Courts of the European Union must not only establish whether the evidence relied on is factually accurate, reliable and consistent but also ascertain whether that evidence contains all the relevant information which must be taken into account in order to assess a complex situation and whether it is capable of substantiating the conclusions drawn from it (judgment of 12 May 2022, Commission v Hansol Paper, C‑260/20 P, EU:C:2022:370, paragraph 59 and the case-law cited).
127 As regards the second condition referred to in paragraph 118 above, although Article 3(1)(b) of Regulation 2016/1037 merely states that, in order to be classified as a ‘subsidy’, a financial contribution must confer a benefit, it follows from Article 5 of that regulation that the benefit which must be characterised is that which that measure may have conferred on the undertaking or undertakings benefiting from that measure. Furthermore, Article 6 of that regulation lists a set of rules to be applied in order to calculate the amount of that benefit in the case of different types of financial contributions, which do not, however, include that consisting in, for the government of the country of origin or export, forgoing or not collecting government revenue that is otherwise due.
128 That being said, it is apparent from the DSB’s decision-making practice, as recalled, in particular, in the WTO Panel Report of 31 October 2019, entitled ‘India - Export-related measures’ (WT/DS541/R, paragraphs 7.445 and 7.446), that where such a measure exists, the benefit conferred by it may be characterised from the moment at which it is established that government revenue that is otherwise due had been forgone or not collected, and therefore that there was a financial contribution within the meaning of the Agreement on Subsidies and Countervailing Measures. Even though the concepts of ‘financial contribution’ and ‘benefit’ are distinct, their respective existence may be demonstrated, in a given case, in the light of identical or related facts, in so far as the amount of the benefit conferred by a financial contribution in the form of a forgoing or non-collection of government revenue corresponds, as a general rule, to the difference between the government revenue that is otherwise due in the reference situation adopted and that which was collected, as the case may be, from the undertaking or undertakings concerned.
129 In the present case, in the light of what has just been recalled, it must be held, first, that, in paragraphs 167 to 169 of the judgment in T‑480/20 and in paragraphs 134 to 136 of the judgment in T‑540/20, the General Court correctly interpreted the meaning and scope of Article 3(1)(a)(ii), Article 3(2) and Article 5 of Regulation 2016/1037, recalling, in essence, that, in order to determine whether the Commission had rightly held that the Government of Egypt had forgone the collection of certain customs duties that are otherwise due on importation into Egypt, by Jushi, of materials intended to be used, as inputs, to manufacture glass fibre products intended for export by Hengshi to the European Union, and whether a benefit had thus been conferred, it was necessary to identify the appropriate reference situation.
130 Secondly, the reference situation adopted by the Commission in the present case, in the light of all the relevant information available, constitutes a matter of fact. The option to choose that situation rather than another is part of the assessment of the facts. As such, those two elements must be subject, on the part of the General Court, to a review which meets the requirements set out in paragraphs 125 and 126 above and therefore implies, in particular, that that court is to verify that the Commission has not committed any substantive error or manifest error of assessment.
131 In addition, it is clear from Article 256 TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that the General Court has exclusive jurisdiction, first, to find the facts, except where the substantive inaccuracy of its assessment is apparent from the documents submitted to it, and, secondly, to assess those facts and the corresponding evidence. The appraisal of those facts and the assessment of that evidence thus do not, therefore, save where the facts or evidence are distorted, constitute a point of law which may be subject, as such, to review by the Court of Justice (judgment of 12 May 2022, Commission v Hansol Paper, C‑260/20 P, EU:C:2022:370, paragraph 132 and the case-law cited).
132 It follows that the appellants, who do not claim that the facts or evidence submitted to the General Court were distorted, are not entitled to challenge the General Court’s assessment of the reference situation adopted by the Commission in the present case, namely that of an undertaking established in the SETC-Zone.
133 Thirdly, since the arguments of the appellants relate exclusively to that assessment, they are not capable of calling into question the General Court’s conclusion that, in essence, the Commission did not err in the legal characterisation of the facts in finding that there was a subsidy, within the meaning of Article 3(1)(a)(ii) and Article 3(2) of Regulation 2016/1037, read in conjunction with Article 5 of that regulation.
134 Accordingly, the present ground of appeal must be rejected as partially inadmissible and partially unfounded.
135 By their fifth ground of appeal in Case C‑269/23 P, alleging, in essence, an incorrect interpretation and application of Article 3(2) and Article 4(2)(c) of Regulation 2016/1037, Hengshi and Jushi challenge the assessment of the General Court in paragraphs 176 to 179 of the judgment in T‑480/20. That ground of appeal is identical to the fourth ground of appeal in Case C‑272/23 P, by which Jushi challenges the assessment of the General Court in paragraphs 143 to 146 of the judgment in T‑540/20.
136 By that ground of appeal, which is common to both cases and which corresponds in part to the pleas at first instance summarised in paragraph 35 above, the appellants criticise the assessments on which the General Court relied in finding that the Commission could consider, without infringing Article 3(2) and Article 4(2)(c) of Regulation 2016/1037, that the tax treatment by the Government of Egypt of foreign exchange losses resulting from the devaluation of the Egyptian pound which occurred in 2016 constituted a subsidy conferring de facto a specific benefit on a limited number of export-oriented undertakings operating the main part of their business in foreign currency, which included Hengshi and Jushi.
137 In that regard, the appellants submit, in the first place, that the General Court, in essence, distorted the regulations at issue by finding that the Commission had classified as a subsidy not the tax and accounting rules adopted by the Government of Egypt in order to enable undertakings with foreign currency liabilities to limit the foreign currency losses resulting from the devaluation of the Egyptian pound which occurred in 2016, considered as such, but the benefit granted de facto by that government, on the basis of those standards, to a specific category of undertakings. It is clear from those regulations that the Commission did not do so. In so doing, the General Court also substituted its own reasoning for that of the Commission.
138 In the second place, that approach led the General Court wrongly to reject the arguments of the appellants relating to the Commission’s assessments in that regard and the legal classifications applied in the light of those assessments.
139 The Commission, supported by the APFE and Tech-Fab Europe, disputes the admissibility and merits of those arguments.
140 As regards, in the first place, the arguments of the appellants relating to the identification by the General Court of the measure classified as a ‘subsidy’ by the Commission in the regulations at issue, it should be noted that a reading of those regulations clearly shows that the General Court neither distorted the content of those regulations in the judgments under appeal nor substituted its own reasoning and its own assessments for those of the Commission.
141 While it is true, as the appellants claim, that the Commission began its examination of that measure by referring to the existence of two rules of Egyptian law, one of a fiscal nature and the other of an accounting nature, it is also clear that that institution then immediately stated that that examination related to the manner in which those rules had been applied, in the specific context which led to their adoption, which is characterised, primarily, by the devaluation of the Egyptian pound which took place in 2016. Furthermore, it is clear that the Commission concluded, following that examination, that the application of those rules, in that specific context, had conferred a benefit on certain undertakings and, as such, was de facto specific. Finally, it is equally clear that those undertakings, including Hengshi and Jushi, were identified by the Commission as being export-oriented undertakings operating the main part of their business in foreign currency.
142 As regards, in the second place, the arguments of the appellants relating to the Commission’s assessments in that regard, on the one hand, and to the legal classifications applied in the light of those assessments, on the other, it must be borne in mind, first, that, as is apparent from paragraph 131 above, the appellants are not entitled to challenge findings of fact in the context of their appeals.
143 Secondly, the General Court was fully entitled, in the light of those assessments, to find, following the Commission, the existence of a subsidy of a specific nature conferring a benefit on Hengshi and Jushi, in accordance with Article 3(2) and Article 4(2)(c) of Regulation 2016/1037.
144 In that regard, it must be pointed out, in particular, that Article 4(2)(c) of Regulation 2016/1037 is specifically intended to enable the Commission to establish the specific nature of measures constituting subsidies, in particular measures of a regulatory, fiscal or accounting nature, where those measures, although having a general or non-specific appearance, may in fact prove to be specific. To that end, that provision sets out a number of factors intended to guide the Commission’s examination when faced with such measures. Those factors, the individual or combined relevance of which is likely to vary in each case according to, inter alia, the measure at issue, the context in which it was put in place and implemented and the conduct of the authorities which adopted it, include, inter alia, the ‘use of a subsidy programme by a limited number of certain [undertakings]’ and ‘the granting of disproportionately large amounts of subsidy to certain [undertakings]’.
145 In the present case, it was on the first of those two factors that the General Court relied, following the Commission, in finding that the measure at issue was de facto specific. That approach is wholly without any error of law.
146 Accordingly, the present ground of appeal must be rejected as, in part, inadmissible and, in part, unfounded.
147 By their first ground of appeal in Case C‑269/23 P, alleging an incorrect interpretation and application of Article 1(1), Article 5 and Article 6 of Regulation 2016/1037, Hengshi and Jushi challenge the General Court’s assessment in paragraphs 32, 37, 42 and 43, 46 to 48, 51 to 55 and 58 of the judgment in T‑480/20.
148 By that ground of appeal, which corresponds to the plea at first instance summarised in paragraph 36 above, the appellants claim, in essence, that the General Court erred in law in approving the method adopted, in its view, by the Commission for the purpose of calculating the amount of countervailable subsidies which had been granted to each of them under the various measures referred to in the regulation at issue in Case T‑480/20.
149 In that regard, the appellants submit, in the first place, that the General Court distorted their plea at first instance in holding, wrongly, that they were in fact alleging that the Commission had infringed Article 7 of Regulation 2016/1037 by using their aggregate turnover, all products combined, as the denominator in order to calculate the amount of those subsidies. That plea at first instance, which was based exclusively on the infringement of Articles 5 and 6 of that regulation, read in conjunction with Article 1(1) of that regulation, consisted in stating that the Commission should have relied, initially, on the individual turnover of each of them, all products combined, in order to calculate the amount of their respective subsidies.
150 In the second place, the appellants submit that, irrespective of that distortion, that plea at first instance cannot be rejected on the ground, also upheld by the General Court in the judgment in Case T‑480/20, that they are related undertakings or undertakings belonging to the same group. It is clear from Articles 5 and 6 of Regulation 2016/1037, read in conjunction with Article 1(1) of that regulation, that the amount of subsidy to be calculated must be calculated ‘in terms of the benefit conferred on the recipient’ and therefore, in a situation such as that in the present case, on each of the undertakings ‘receiving’ such subsidies, even if those undertakings are related or belong to the same group.
151 The Commission, supported by Tech-Fab Europe, disputes those arguments.
152 It follows from Article 5 of Regulation 2016/1037 that the amount of countervailable subsidies must be calculated in terms of the benefit conferred on the recipient of that subsidy. Furthermore, it follows from Article 6 of that regulation that the calculation of that benefit must be carried out by applying certain rules, which differ according to the type of subsidy at issue in a given case but which all refer, as the case may be, to the ‘recipient’ of that subsidy, to the ‘firm receiving’ that subsidy or even to the ‘firm’.
153 On the other hand, that regulation does not define the concept of ‘recipient’ or that of ‘firm’. Those concepts must, therefore, be understood taking into account the context in which they occur and the objective pursued by the provisions that include them and, more generally, by Regulation 2016/1037, which must, moreover, be interpreted, so far as possible, in conformity with the Agreement on Subsidies and Countervailing Measures.
154 In that regard, in the first place, the General Court recalled, in paragraph 47 of the judgment in Case T‑480/20, that, although that agreement does not itself contain a definition of the persons who may benefit from a subsidy and, consequently, confer a benefit, the amount of which must serve as a basis for the calculation of that subsidy, that question was analysed in detail and clarified by the WTO Appellate Body in its report of 9 December 2002, entitled ‘United States - Countervailing measures concerning certain products from the European Communities’ (WT/DS212/AB/R, paragraphs 108 to 119), which was adopted by the DSB on 8 January 2003.
155 It is apparent from that report of the WTO Appellate Body, in essence, that the identification of the person or persons receiving a subsidy depends on the particular circumstances of each case and that, having regard to the various relevant provisions of that agreement, its broad logic and its objective, it must be held that that agreement does not preclude the conclusion, depending on the circumstances, that the recipient of a subsidy is a natural person, a legal person, a group of natural persons, a group of legal persons or even a grouping bringing together one or more natural persons and one or more legal persons, such as undertakings and their owners. The fact that those persons are legally distinct is not relevant for the purposes of identifying the recipient of a subsidy, which corresponds to the economic entity whose products are artificially aided by that subsidy.
156 Consistent with the decision-making practice of the DSB, with the terms used by the EU legislature in Regulation 2016/1037 and with the context in which they occur, the concept of ‘recipient’ referred to in Articles 5 and 6 of that regulation must be interpreted as referring, in any given case, to each of the undertakings to which subsidies are granted. As the Advocate General observed in point 90 of her Opinion, the concept of ‘undertaking’ itself corresponds to the economic unit, possibly comprising several legally distinct legal persons, which carries out the economic activity of manufacturing, marketing, transporting or exporting products on which that subsidy confers a benefit, irrespective of the legal status of that economic unit and the way in which it is financed (see, by analogy, judgments of 14 November 1984, Intermills v Commission, 323/82, EU:C:1984:345, paragraph 11, and of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 103).
157 In the second place, the General Court correctly relied on that definition of the concepts of ‘recipient’ and ‘undertakings’ in paragraphs 48 and 51 of the judgment in T‑480/20 in order to approve the method of calculation applied by the Commission, in view of the fact that Hengshi and Jushi belonged to the same group, in order to calculate the amount of countervailing measures that could be imposed in the present case.
158 In the third and last place, the appellants are not entitled to challenge, on appeal, the assessments made by the General Court concerning that fact, in the light of the considerations set out in the regulation at issue and the arguments of fact and the evidence in the file at first instance.
159 Accordingly, the present ground of appeal must be rejected as, in part, inadmissible and, in part, unfounded, without it being necessary to rule on the reference made by the General Court, for the sake of completeness, to Article 7 of Regulation 2016/1037.
160 Consequently, the appeals must be dismissed.
161 Under Article 138(1) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings pursuant to Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
162 Since Hengshi and Jushi have been unsuccessful in Case C‑269/23 P, and Jushi has been unsuccessful in Case C‑272/23 P, they must be ordered to pay the respective costs in those cases, in accordance with the forms of order sought by the Commission, Tech-Fab Europe and the APFE.
163 Article 184(4) of the Rules of Procedure provides that, where the appeal has not been brought by an intervener at first instance, he or she may not be ordered to pay costs in the appeal proceedings unless he or she participated in the written or oral part of the proceedings before the Court of Justice. Where an intervener at first instance takes part in the proceedings, the Court may decide that he or she shall bear his or her own costs.
164 In the present case, Tech-Fab Europe and the APFE, interveners at first instance, having participated in the proceedings before the Court of Justice, shall bear their own costs.