ORDER OF THE GENERAL COURT (FIRST CHAMBER)
8 July 2014 (*)
(Dumping — Imports of certain polyethylene terephthalate originating in India, Thailand and Taiwan — Decision to terminate the expiry review proceeding without imposing a definitive anti-dumping duty — Intervention — Interest in the result of the case — Confidentiality)
In Case T‑422/13,
Committee of Polyethylene Terephthalate (PET) Manufacturers Europe (CPME), established in Brussels (Belgium),
Artenius España, SL, established in Barcelona (Spain),
Cepsa Quimica, SA, established in Madrid (Spain),
Equipolymers Srl, established in Milan (Italy),
Indorama Ventures Poland sp. z o.o., established in Włocławek (Poland),
Lotte Chemical UK Ltd, established in Cleveland (United States),
M&G Polimeri Italia SpA, established in Patricia (Italy),
Novapet, SA, established in Zaragoza (Spain),
Ottana Polimeri Srl, established in Ottana (Italy),
UAB Indorama Polymers Europe, established in Klaipeda (Lithuania),
UAB Neo Group, established in Klaipeda (Lithuania),
UAB Orion Global pet, established in Klaipeda (Lithuania),
represented by L. Ruessmann, lawyer, and J. Beck, Solicitor,
applicants,
supported by
European Commission, represented by J.-F. Brakeland and M. França, acting as Agents,
intervener,
v
Council of the European Union, represented by S. Boelaert and J.-P. Hix, acting as Agents, assisted by B. O’Connor and S. Gubel, lawyers,
defendant,
ACTION for annulment of the Council Implementing Decision of 21 May 2013 rejecting the Proposal for a Council Implementing Regulation imposing a definitive anti-dumping duty on imports of certain polyethylene terephthalate originating in India, Taiwan and Thailand following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009 and terminating the expiry review proceeding concerning imports of certain polyethylene terephthalate originating in Indonesia and Malaysia, in so far as the proposal would impose a definitive anti-dumping duty on imports of certain polyethylene terephthalate originating in India, Taiwan and Thailand (OJ 2013 L 136, p. 12), and for compensation for the injury sustained as a result of that decision,
THE GENERAL COURT (FIRST CHAMBER)
makes the following
Order
Facts and procedure
1 On 14 August 2013, the applicants brought an action under Article 263 TFEU for annulment of Council Implementing Decision 2013/226/EU of 21 May 2013 rejecting the Proposal for a Council Implementing Regulation imposing a definitive anti-dumping duty on imports of certain polyethylene terephthalate originating in India, Taiwan and Thailand following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009 and terminating the expiry review proceeding concerning imports of certain polyethylene terephthalate originating in Indonesia and Malaysia, in so far as the proposal would impose a definitive anti-dumping duty on imports of certain polyethylene terephthalate originating in India, Taiwan and Thailand (OJ 2013 L 136, p. 12; ‘the contested decision’) and a claim for damages under Article 268 TFEU and the second paragraph of Article 340 TFEU.
2 By document lodged at the Court Registry on 20 December 2013, the parties seeking to intervene — the European Federation of Bottled Waters (‘EFBW’), CAIBA, Coca-Cola Enterprises Belgium, Danone, Nestlé Waters Management & Technology, Pepsico International Ltd and Refresco Gerber BV — applied for leave to intervene jointly, in support of the form of order sought by the Council of the European Union.
3 The abovementioned application was notified to the applicants, to the Council and to the European Commission, in accordance with Article 116(1) of the Rules of Procedure of the General Court. The Council informed the Court that it would not submit observations in respect of that application and the Commission indicated that, given the very specific circumstances of the present case, it did not oppose the application. The applicants, on the other hand, raised objections to the granting of leave to intervene.
Law
Arguments of the parties seeking to intervene and of the applicants
4 As a preliminary, the parties seeking to intervene submit that, with the exception of EFBW, they are all companies established in the European Union that use polyethylene terephthalate (‘PET’). CAIBA produces and markets bottles and bottle preforms made from PET that it purchases in the market. That company is linked to neither the PET producers nor the bottlers. The other companies make bottles from PET or from preforms made with PET that they purchase in the market in order to fill those bottles with their production of non-alcoholic beverages to be sold as the final product. According to its articles of association, EFBW is a European federation composed of national associations, and companies operating in the industry of bottled and packaged waters.
5 In support of their application, the parties seeking to intervene note, first, that they participated actively in the review investigation that led to the Proposal for a Council Implementing Regulation imposing a definitive anti-dumping duty on imports of certain polyethylene terephthalate originating in India, Taiwan and Thailand following an expiry review pursuant to Article 11(2) of Regulation (EC) No 1225/2009, and terminating the expiry review proceeding concerning imports of certain polyethylene terephthalate originating in Indonesia and Malaysia (COM(2013) 234 final; ‘the Proposal for an Implementing Regulation’).
6 Secondly, they claim that the reasons stated for the contested decision are directly linked to the evidence that they submitted during the review investigation and that, since they represent a significant number of PET-using businesses in the European Union, they were the primary source of information.
7 Thirdly, the parties seeking to intervene submit that they have a direct interest in the result of the present case since the expiry of the existing anti-dumping measures will lead to a reduction in the price of PET and, accordingly, a reduction of their costs.
8 Fourthly, as regards EFBW, that association argues that it meets the various criteria established in the case-law in order to be entitled to intervene in the present proceedings.
9 The applicants contend that the parties seeking to intervene have no direct interest in the result of the present case.
10 As regards, first, the action for annulment, the applicants submit that the participation in the review procedure of the parties seeking to intervene and the fact that the Council took their arguments into consideration in the statement of reasons for the contested decision are insufficient grounds to establish the requisite interest for the purposes of Article 40(2) of the Statute of the Court of Justice. The applicants submit, moreover, that, in any event, if the Court were to annul the contested decision, the parties seeking to intervene would be able to assert their interests in the subsequent administrative procedure initiated by the Commission following the annulment of the contested decision. Granting leave to intervene would effectively delay unnecessarily the proceedings before the Court and, consequently, exacerbate the injury sustained by the applicants.
11 As regards, secondly, the claim for damages, the applicants submit that the Court’s judgment cannot in any way affect the legal and financial position of the parties seeking to intervene. The application for leave to intervene should therefore be rejected in any event with regard to the claim for damages.
Findings of the Court
12 It must be pointed out, first of all, that the application to intervene was submitted in accordance with Article 115 of the Rules of Procedure. In particular, since the notice in the Official Journal of the European Union referred to in Article 24(6) of the Rules of Procedure was published on 9 November 2013, the application to intervene was submitted within the period prescribed in Article 115(1) of the Rules of Procedure.
13 It must also be noted that, in accordance with Article 40 of the Statute of the Court of Justice, applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 thereof, any person able to establish an interest in the result of a case submitted to the Court is entitled to intervene, except in cases between Member States, between institutions of the Union or between Member States and institutions of the Union.
14 An interest in the result of the case should be understood as meaning a direct and present interest in the granting of the form of order sought by the party which the intervener intends to support (order of the President of the Court of 6 March 2003 in Ramondin and Ramondin Capsulas v Commission, C‑186/02 P, EU:C:2003:141, paragraph 7).
15 In the present case, the contested decision rejected the Proposal for an Implementing Regulation in so far as it would have imposed a definitive anti-dumping duty on imports of certain PET originating in India, Taiwan and Thailand. The Council concluded that it was clearly not in the interest of the European Union to extend the anti-dumping measures, since the costs to PET importers, users and consumers were disproportionate to the benefits for the EU industry (see recital 23 in the contested decision).
16 According to recital 19 in the contested decision, ‘… the anti-dumping measures have increased the costs to the user industry. Many users are bottlers and SMEs operating on tight margins and they have been seriously affected by high PET prices in recent years because PET represents a decisive proportion of their production costs …’
17 As can be seen from paragraph 4 above, the parties seeking to intervene, with the exception of EFBW, are companies established in the European Union that use PET; either they produce and market bottles or bottle preforms made from PET that they purchase on the market, or they make bottles from PET or from preforms made with PET that they purchase on the market in order to fill those bottles with their production of non-alcoholic beverages to be sold as the final product.
18 Consequently, the adoption of anti-dumping measures on PET imports from India, Taiwan and Thailand is liable to have a direct impact on the financial situation of the parties seeking to intervene — a point, moreover, that neither the applicants nor the Commission have called into question.
19 Moreover, it can be seen, inter alia, from recitals 26, 28, 210, 240 and 241 of the Proposal for an Implementing Regulation that the parties seeking to intervene participated actively in the review procedure that led to the proposal, in particular by responding to questionnaires, by submitting observations and by allowing in situ verification visits. In that context, the Commission states that, like the applicants, it has demonstrated that the arguments and evidence presented by the parties seeking to intervene in the course of that review procedure were taken up by the Council in the contested decision in order to reject the Proposal for an Implementing Regulation to extend the existing anti-dumping duties.
20 Likewise, according to the parties seeking to intervene, the considerations set out in recital 19 in the contested decision as well as those relating to the likelihood of recurrence of injury and to the Union interest, which are at odds with the reasons stated by the Commission in the Proposal for an Implementing Regulation, directly reflect the arguments put forward by the parties seeking to intervene.
21 Accordingly, it must be acknowledged that the parties seeking to intervene form part of the Community industry whose interests were taken into consideration in the contested decision; that they participated actively in the review procedure; and that their participation had a decisive influence on the content of that decision.
22 In the light of the foregoing, it must be concluded that the parties seeking to intervene have a direct and present interest in intervening in support of the form of order sought by the Council.
23 It is true that, as the applicants and the Commission point out, in the event that the Court annuls the contested decision, the parties seeking to intervene will have the opportunity to assert their interests in any subsequent administrative procedure initiated by the Commission in order to establish a new anti-dumping duty.
24 Nevertheless, in view of the clear interest of the parties seeking to intervene in having the contested decision upheld, their active participation in the procedure that led to the adoption of the contested decision and the decisive influence of that participation on the content of that decision, as the Commission noted, the application for leave to intervene must be granted (to that effect, see, inter alia, the order of 17 February 2011 in Greenwood Houseware (Zhuhai) and Others v Council, T‑191/10, EU:T:2011:57, paragraphs 18 et 20).
25 As regards EFBW’s application for leave to intervene, it must be noted that, according to settled case-law, intervention is permissible by representative associations whose object is to protect their members in cases raising questions of principle that are liable to affect those members. That broad interpretation of the right of associations to intervene is intended to facilitate assessment of the context of such cases whilst avoiding multiple individual interventions which would compromise the effectiveness and proper course of the procedure (orders of 17 June 1997, National Power and PowerGen, C‑151/97 P(I) and C‑157/97 P(I), EU:C:1997:307, paragraph 66; of 28 September 1998, Pharos v Commission, C‑151/98 P, EU:C:1998:440, paragraph 6; and of 18 October 2012, ClientEarth et The International Chemical Secretariat v ECHA, T‑245/11, EU:T:2012:557, paragraphs 12 et 13).
26 More specifically, an association may be granted leave to intervene in a case if it represents an appreciable number of operators active in the sector concerned; if its objects include that of protecting its members’ interests; and if the case may raise questions of principle affecting the functioning of the sector concerned and the interests of its members may therefore be affected to an appreciable extent by the judgment to be given (see orders of 26 February 2007, Akzo Nobel Chemicals and Akcros Chemicals v Commission, T‑253/03, EU:T:2007:58, paragraph 15, and ClientEarth and The International Chemical Secretariat v ECHA, EU:T:2012:557, paragraph 12).
27 First, it undisputed that EFBW represents an appreciable number of companies and national associations active in the sector concerned, as can be seen from the list of its members annexed to the application to intervene.
28 Secondly, it can be seen from Article 4 of EFBW’s articles of association that one of that association’s objects is ‘[t]o represent the interests of the bottled water industry before relevant national European and international institutions …’.
29 Thirdly, since, as can be seen from recital 19 in the contested decision, that decision rejected the Proposal for an Implementing Regulation, as a result of, inter alia, the finding that the anti-dumping measures had a significant adverse impact on the situation of the European PET-user industry — a finding which was made, in particular, on the basis of the data provided by members of EFBW — it must be held that those members may be affected to an appreciable extent by the judgment to be given.
30 Fourthly, is not disputed that EFBW participated actively in the administrative procedure that led to the Proposal for an Implementing Regulation and to the adoption of the contested decision.
31 It must therefore be concluded that EFBW has an interest in the dismissal of the action for annulment.
32 However, as the applicants rightly noted, the interest of the parties seeking to intervene in support of the form of order sought by the Council cannot extend to the rejection of the claim for damages which, if it had been held to be well-founded, would not have any effect on the situation of the parties seeking to intervene (see, inter alia, order of 26 September 2011, Trabelsi and Others v Council, T‑187/11, EU:T:2011:384, paragraphs 32 and 33).
33 On those grounds, the application for leave to intervene in support of the form of order sought by the Council, in so far as it concerns dismissal of the action for annulment, must be granted. The remainder of the application for leave to intervene must be dismissed.
The request for confidential treatment
34 By document lodged at the Court Registry on 20 February 2014, the applicants requested that, pursuant to Article 116(2) of the Rules of Procedure, certain confidential material in the file be omitted from the notification to the parties seeking to intervene. For the purposes of that notification, the applicants produced a non-confidential version of the pleadings and annexes in question.
35 At this stage, the notification to the interveners of procedural documents served on the parties must be limited to the non-confidential versions of those documents. A decision on the merits of that request for confidential treatment will, if necessary, be taken at a later stage in the light of any objections or observations which may be submitted on that issue.
Costs
36 Under Article 87(1) of the Rules of Procedure, a decision as to costs is to be given in the final judgment or in the order closing the proceedings.
37 At this stage of the proceedings, costs must therefore be reserved.
On those grounds,
THE GENERAL COURT (FIRST CHAMBER)
hereby orders:
1. The European Federation of Bottled Waters, CAIBA, Coca-Cola Enterprises Belgium, Danone, Nestlé Waters Management & Technology, Pepsico International Ltd and Refresco Gerber BV are granted leave to intervene in Case T‑422/13 in support of the form of order sought by the Council, in so far as it concerns dismissal of the action for annulment.
2. The Registrar shall send the interveners a non-confidential version of each procedural document served on the parties.
3. A period shall be prescribed within which the interveners may submit any observations that they may have on the request for confidential treatment. The decision on the merits of that request is reserved.
4. A period shall be prescribed within which the interveners may submit a statement in intervention, without prejudice to the possibility of supplementing it later if necessary, further to a decision on the merits of the request for confidential treatment.
5. The remainder of the application is dismissed.
6. The costs are reserved.
Luxembourg, 8 July 2014.