ORDER OF THE COURT (Ninth Chamber)
10 March 2016 (*)
(Appeals — Article 181 of the Rules of Procedure of the Court — Appeal manifestly unfounded — Regulation (EU) No 513/2013 — Dumping — Imports of crystalline silicon photovoltaic modules and key components (cells and wafers) originating in or consigned from China — Provisional anti-dumping duty — Definitive anti-dumping duty — No need to adjudicate — Loss of interest in bringing proceedings)
In Case C‑312/15 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 24 June 2015,
SolarWorld AG, established in Bonn (Germany), represented by L. Ruessmann, avocat, and J. Beck, Solicitor,
appellant,
the other parties to the proceedings being:
Solsonica SpA, established in Cittaducale (Italy),
applicant at first instance
European Commission, represented by J-F. Brakeland, T. Maxian Rusche and A. Stobiecka-Kuik, acting as Agents, with an address for service in Luxembourg,
defendant at first instance,
THE COURT (Ninth Chamber),
composed of C. Lycourgos, President of the Chamber, C. Vajda and K. Jürimäe (Rapporteur), Judges,
Advocate General: M. Campos Sánchez-Bordona,
Registrar: A. Calot Escobar,
having regard to the decision taken, after hearing the Advocate General, to give a decision on the action by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court of Justice,
makes the following
Order
1 By its appeal, SolarWorld AG (‘SolarWorld’) asks the Court to set aside the order of the General Court of the European Union of 14 April 2015 in SolarWorld and Solsonica v Commission (T‑393/13, EU:T:2015:211, ‘the order under appeal’), in so far as by that order the General Court held that there was no longer any need to adjudicate on the action of SolarWorld and Solsonica SpA (‘Solsonica’) for the annulment of Commission Regulation (EU) No 513/2013 of 4 June 2013 imposing a provisional anti-dumping duty on imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the People’s Republic of China and amending Regulation (EU) No 182/2013 making these imports originating in or consigned from the People’s Republic of China subject to registration (OJ 2013 L 152, p. 5, ‘the regulation at issue’), and for compensation on the ground of non-contractual liability of the European Union for the loss which SolarWorld and Solsonica suffered as a result of the application, from 6 June to 5 August 2013, of the provisional anti-dumping duties at the rate imposed by the regulation at issue.
Background to the proceedings and the regulation at issue
2 For the purposes of the present appeal, the background to the dispute, as set out in paragraphs 1 to 18 of the order under appeal, may be summarised as follows.
3 SolarWorld and Solsonica are European producers of crystalline silicon photovoltaic modules and key components, members of EU ProSun, an association of European producers of those products. On 25 July 2012, EU ProSun lodged a complaint with the European Commission with regard to dumping practices in connection with imports of such products consigned from China.
4 On 6 September 2012, the Commission published in the Official Journal of the European Union a Notice of initiation of an anti-dumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in the People’s Republic of China (OJ 2012 C 269, p. 5), in which SolarWorld cooperated.
5 On 4 June 2013, the Commission adopted the regulation at issue. Article 1(2)(i) of that regulation imposed a provisional anti-dumping duty of 11.8% on imports into the European Union, originating in or consigned from China, of crystalline silicon photovoltaic modules or panels and cells and wafers of the type used in crystalline silicon photovoltaic modules or panels for a two-month period from 6 June to 5 August 2013. Article 1(2)(ii) of the regulation imposes a specific anti-dumping duty from 6 August to 5 December 2013 on imports of certain exporting producers listed in the same regulation, ranging from 37.3% to 67.9%. Under Article 1(3) of the regulation the release for free circulation in the European Union of the products concerned was made subject to the provision of a security equivalent to the amount of the provisional duty.
6 On 2 August 2013, the Commission adopted Regulation (EU) No 748/2013 amending Regulation (EU) No 513/2013 (OJ 2013 L 209, p. 1), following its adoption of Decision 2013/423/EU of 2 August 2013 accepting an undertaking offered in connection with the anti-dumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the People’s Republic of China (OJ 2013 L 209, p. 26) by a group of Chinese exporting producers, listed in the annex to that decision, which had cooperated together with the China Chamber of Commerce for Import and Export of Machinery and Electronic Products. As a result, certain imports were exempted from the provisional anti-dumping duty imposed by Article 1 of the regulation at issue.
7 Following the investigation initiated on the basis of the complaint of 25 July 2012, Council Implementing Regulation (EU) No 1238/2013 of 2 December 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China (OJ 2013 L 325, p. 1, ‘the definitive regulation’) was adopted.
8 Article 1 of the definitive regulation imposed a specific anti-dumping duty at rates ranging from 27.3% to 64.9% on the exporting producers listed in that regulation.
9 Under Article 2(2) of that regulation:
‘The amounts secured by way of the provisional anti-dumping duty pursuant to Regulation (EU) No 513/2013 on imports of crystalline silicon photovoltaic modules or panels and cells of the type used in crystalline silicon photovoltaic modules or panels (the cells have a thickness not exceeding 400 micrometres), currently falling within CN codes ex 8501 31 00, ex 8501 32 00, ex 8501 33 00, ex 8501 34 00, ex 8501 61 20, ex 8501 61 80, ex 8501 62 00, ex 8501 63 00, ex 8501 64 00 and ex 8541 40 90 (TARIC codes 8501 31 00 81, 8501 31 00 89, 8501 32 00 41, 8501 32 00 49, 8501 33 00 61, 8501 33 00 69, 8501 34 00 41, 8501 34 00 49, 8501 61 20 41, 8501 61 20 49, 8501 61 80 41, 8501 61 80 49, 8501 62 00 61, 8501 62 00 69, 8501 63 00 41, 8501 63 00 49, 8501 64 00 41, 8501 64 00 49, 8541 40 90 21, 8541 40 90 29, 8541 40 90 31 and 8541 40 90 39) and originating in or consigned from the People’s Republic of China, unless they are in transit in the sense of Article V GATT, shall be definitively collected. The amounts secured in excess of the definitive rate of anti-dumping duties shall be released.’
The proceedings before the General Court and the order under appeal
10 By application lodged at the Registry of the General Court on 1 August 2013, SolarWorld and Solsonica brought an action for the annulment of the regulation at issue in so far as, pursuant to Article 1(2) of that regulation, the rate of provisional anti-dumping duties was set from 6 June to 5 August 2013 at a level which eliminated neither the dumping nor the loss caused. On the ground of non-contractual liability of the European Union, they also claimed compensation for the loss that they considered themselves to have suffered as a result of the application of that rate.
11 On 10 October 2014, the parties were called upon to submit their observations on a potential order that on the basis of Article 113 of the Rules of Procedure of the General Court there was no need to adjudicate following the adoption of the definitive regulation. The applicants at first instance responded to the General Court that it should not order that there was no need to adjudicate and should give judgment on the substantive merits of the case.
12 By the order under appeal, the General Court held, in essence, that in so far as the action concerned the annulment of the regulation at issue and the claim for compensation there was no need to adjudicate on it, on the ground that, as a result of the adoption of the definitive regulation, the applicants at first instance no longer had any interest in bringing proceedings.
Forms of order sought by the parties before the Court
13 SolarWorld claims that the Court should:
– set aside the order under appeal in so far as the General Court held that there was no longer any need to adjudicate on the action for annulment and for compensation;
– declare the action in Case T‑393/13 admissible;
– refer the case back to the General Court for a decision on the substantive merits of the action.
14 The Commission claims that the Court should:
– dismiss the appeal as inadmissible and, in any event, unfounded, and
– order SolarWorld to pay the costs.
The appeal
15 Under Article 181 of the Rules of Procedure of the Court of Justice, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss the appeal in whole or in part without opening the oral procedure.
16 It is appropriate to use that power in this case.
Arguments of the parties
17 In support of its appeal, SolarWorld relies on a single ground of appeal alleging errors of law by the General Court in so far as it held that there was no longer any need to adjudicate on the action for annulment of the regulation at issue and for compensation of the loss suffered.
18 It claims that the reasoning of the General Court is manifestly flawed in so far as it is based on EU case-law relating to importing and exporting producers’ lack of an interest in bringing proceedings in actions brought against provisional regulations where a definitive regulation had been adopted.
19 In view of the independent effect on the European industry of the provisional anti-dumping duty imposed by the regulation at issue, which aims to provide that industry with temporary relief for the duration of the anti-dumping proceeding from injury suffered by the industry due to dumped imports, SolarWorld, in its capacity as a European producer, is in a fundamentally different situation from that of the importing and exporting producers. Accordingly, that case-law on those producers is not applicable to the present case.
20 The General Court therefore misapplied the case-law referred to in paragraph 65 of the judgment in Abdulrahim v Council and Commission (C‑239/12 P, EU:C:2013:331), according to which an interest in bringing proceedings must be assessed in the light of the specific circumstances, taking account, in particular, of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been sustained.
21 The Commission objects, primarily, that the appeal is inadmissible. In that regard, it contends that the appeal brought by the appellant does not identify the paragraphs of the order under appeal which are challenged with the necessary detail required by Article 169(2) of the Rules of Procedure of the Court. It claims, in addition, that the appellant lacks an interest in bringing proceedings in so far as the appellant would not benefit from the annulment of the order under appeal. Furthermore, the Commission contends that the appeal is not well founded.
Findings of the Court
Admissibility
22 As regards the ground of inadmissibility raised by the Commission based on the lack of detail in the appeal, it must be found that the appeal identifies the paragraphs of the order under appeal challenged by the single ground, namely inter alia paragraphs 44, 51, 62, 63, 67 and 68, with the necessary detail required by Article 169(2) of the Rules of Procedure of the Court. As a result, the Court is able to examine the ground of appeal.
23 As regards the ground of inadmissibility based on the appellant’s lack of an interest in bringing proceedings, as noted in the previous paragraph, since the appeal seeks the annulment of the order under appeal in so far as the General Court ordered that there was no need to adjudicate on the action brought by the appellant, the appeal against that order which adversely affects it must be considered to be admissible.
24 The appeal is thus admissible.
Substance
25 According to settled case-law, given the fact that the amounts lodged by way of a provisional anti-dumping duty imposed by a provisional anti-dumping regulation are to be definitively collected pursuant to a definitive regulation, no legal effect arising out of the provisional regulation may be relied on (see, to that effect, judgment in GLS, C‑338/10, EU:C:2012:158, paragraph 18 and the case-law cited). It follows that, in the present case, after the adoption of the definitive regulation by the Council of the European Union, SolarWorld, in principle, no longer has an interest in contesting the regulation at issue, which was adopted on a provisional basis.
26 As regards the possibility for the appellant to obtain a declaration of nullity of the provisional regulation with a view to claiming damages on that basis, it is also clear from the case-law of the Court that the illegality of a definitive regulation could be pleaded in support of a claim for compensation for any loss caused by a provisional regulation. In so far as the definitive regulation has replaced the provisional regulation, the legality of the provisional regulation is not capable of having any bearing on a claim for compensation (see, to that effect, judgments in Technointorg v Commission and Council, 294/86 and 77/87, EU:C:1988:470, paragraph 13, and Neotype Techmashexport v Commission and Council, C‑305/86 and C‑160/87, EU:C:1990:295, paragraph 14).
27 On the basis of that case-law, the General Court found that there was no need to adjudicate on the action in so far as it sought the annulment of the regulation at issue and compensation for the applicants at first instance on the basis of the regulation at issue.
28 The appellant submits, nevertheless, that that case-law is not relevant to the present case in so far as this case concerns the effects of the regulation at issue not on the importing or exporting producers of the products concerned, as in the cases which gave rise to that case-law, but on the European producers who continue to have an interest in bringing proceedings.
29 In that regard, it must be held that, in paragraphs 53 and 54 of the order under appeal, the General Court was fully entitled to find, and the appellant does not dispute, that the continuing existence of an interest in bringing proceedings against a provisional anti-dumping regulation depends on whether the relevant definitive regulation confirms and reproduces all of the elements, or indeed all of the contested effects, of the provisional regulation, with the result that the definitive regulation replaces the provisional regulation and that, following the entry into force of the definitive regulation, no independent legal effect of the provisional regulation remains, so that actions brought against the definitive regulation would be capable of remedying the situation of the party bringing proceedings.
30 Consequently, contrary to what SolarWorld claims, the General Court considered in paragraphs 55 and 56 as well as in paragraphs 60 and 61 of the order under appeal whether, specifically as against SolarWorld, there were any autonomous or independent effects capable of being attributed solely to the regulation at issue following the entry into force of the definitive regulation and not maintained by that definitive regulation. The General Court found, in paragraphs 57 and 62 of the order under appeal, that, as far as the contested elements and effects of the regulation at issue are concerned, the definitive regulation replaced the regulation at issue in its entirety, so that the provisional regulation could be considered not to have caused any loss independently from that caused by the definitive regulation.
31 SolarWorld has not put forward any factors from which it could be concluded that those grounds, as adopted by the General Court in the order under appeal, are vitiated by any error in law.
32 As to the remainder, the appellant has not identified any factors capable of establishing that the present case must be distinguished from those which gave rise to the case-law in paragraphs 25 and 26 above and therefore that the General Court erred in law in holding that there was no longer any need to adjudicate on the action in so far as it concerned the annulment of the regulation at issue and the claim for damages.
33 Consequently, the present appeal must be rejected as manifestly unfounded.
Costs
34 Under Article 138(1) of the Rules of Procedure of the Court, which applies to appeal proceedings by virtue of 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. Since the Commission has applied for costs against SolarWorld and SolarWorld has been unsuccessful, it must be ordered to pay the costs.
On those grounds, the Court (Ninth Chamber) hereby orders:
1. The appeal is dismissed.
2. SolarWorld AG shall pay the costs.
[Signatures]
* Language of the case: English.
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