Language of document : ECLI:EU:C:2016:796

ORDER OF THE PRESIDENT OF THE COURT

13 October 2016 (*)

(Appeal — Intervention — Dumping — Undertaking forming part of the European Union industry — Interest in the result of the case — Admission to intervene)

In Case C‑301/16 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 26 May 2016,

European Commission, represented by T. Maxian Rusche and L. Flynn, acting as Agents,

appellant,

the other party to the proceedings being:

Xinyi PV Products (Anhui) Holdings Ltd, established in Anhui (China), represented by Y. Melin, avocat, and V. Akritidis, dikigoros,

applicant at first instance,

THE PRESIDENT OF THE COURT,

having regard to the proposal from A. Prechal, Judge-Rapporteur,

after hearing the Advocate General, P. Mengozzi,

makes the following

Order

1        By its appeal, the European Commission seeks to have set aside the judgment of the General Court of the European Union of 16 March 2016, Xinyi PV Products (Anhui) Holdings v Commission (T‑586/14, ‘the judgment under appeal’, EU:T:2016:154), by which the General Court upheld the action brought by Xinji PV Products (Anhui) Holdings Ltd (‘Xinji’) seeking the annulment of Commission Implementing Regulation (EU) No 470/2014 of 13 May 2014 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of solar glass originating in the People’s Republic of China (OJ 2014 L 142, p. 1) (‘the contested regulation’).

2        By a document lodged at the Court Registry on 24 August 2016, pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, GMB Glasmanufaktur Brandenburg GmbH (‘GMB’) applied for leave to intervene in the present appeal in support of the form of order sought by the Commission.

3        The Commission and Xinji filed their respective written observations on that application on 12 September 2016.

 The application for leave to intervene

4        GMB submits, in essence, that it satisfies the conditions to which the right to intervene, pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, is subject and that it must therefore be granted leave to intervene in support of the form of order sought by the Commission.

5        In support of its application to intervene, GMB advances, in essence, the following arguments:

–        GMB is, by volume, the largest European producer of the product concerned by the contested regulation, whilst Xinji is one of the largest Chinese exporters, if not the largest, of that product. One of the highest rates of anti-dumping duty was imposed on Xinji, and that rate was even increased substantially following the investigation in which there was a finding that the anti-dumping duties had been absorbed. Therefore, the commercial interests of GMB would manifestly be compromised by the removal or reduction of the rate of anti-dumping duty applicable for that exporter. That could, in particular, give rise to a loss of market share for GMB and a gain of an even greater market share for Xinji;

–        GMB participated actively in the anti-dumping procedure before the EU institutions and it also participated actively in the later phases of that procedure; and

–        GMB is expressly referred to in certain anti-dumping regulations brought into issue in the application for annulment.

6        The Commission and Xinji have stated that they have no observations to make on that application.

7        Pursuant to the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, any natural or legal person may intervene in a case before the European Union Courts, other than a case between Member States, between EU institutions or between Member States, on the one hand, and institutions of the European Union, on the other hand, if that person can establish an interest in the result of the case.

8        According to settled case-law, the concept of an ‘interest in the result of a case’, within the meaning of that provision, must be defined having regard to the precise subject matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law or arguments put forward. The expression ‘the result of the case’ refers to the final decision sought, as it would be set out in the operative part of the judgment to be delivered (see, inter alia, order of the President of the Court of 9 June 2016, Council v Front Polisario, C‑104/16 P, not published, EU:C:2016:443, paragraph 10 and the case-law cited).

9        In that regard, it is necessary, in particular, to establish that the applicant for leave to intervene is directly affected by the contested measure and that his interest in the result of the case is certain (order of the President of the Court of 27 February 2015, Mory and Others v Commission, C‑33/14 P, not published, EU:C:2015:135, paragraph 7 and the case-law cited).

10      In the present case, the appeal seeks to have set aside the judgment under appeal by which the General Court annulled the contested regulation. That regulation had, in particular, imposed a definitive anti-dumping duty on imports of solar glass from China, this being the product of which GMB is the largest European producer.

11      Pursuant to the second paragraph of Article 60 of the Statute of the Court of Justice of the European Union, the lodging of the appeal has had the effect of postponing the date from which the judgment under appeal takes effect until the date of the possible dismissal of the appeal, should that situation arise. Therefore, the outcome of the present appeal proceedings will have a direct effect on the collection of the definitive anti-dumping duty at issue. It is in the light of that fact, in particular, that the existence of an interest in the result of the case for GMB must be assessed.

12      It is clear from the Court’s case-law that, where the case concerns the validity of a regulation imposing an anti-dumping duty, having regard to the nature and content of that regulation, undertakings which are required to pay a specific anti-dumping duty and undertakings which import the goods covered by the contested regulation and which must, under that regulation, pay a specific anti-dumping duty, have such an interest in the result of the case (order of the President of the Court of 17 October 2011, Gesamtverband der deutschen Textil- und Modeindustrie and Others v Council and Others, C‑2/11 P(I), not published, EU:C:2011:664, paragraph 11).

13      In the same particular context of a case that concerns the validity of a regulation imposing an anti-dumping duty, such as the contested regulation, undertakings which were regarded by the Commission as forming part of the European Union industry under consideration in the regulation imposing definitive anti-dumping duties and which have actively participated in the administrative procedure that led to the adoption of that regulation must also be regarded as having, in principle, such an interest in the result of the case. In so far as such a regulation is adopted after a finding that injury has been suffered by the European Union industry, it is necessary to take the view that those undertakings may be affected by the possible annulment of the regulation at issue.

14      In the present case, it must be held, in the first place, that GMB is a producer in the European Union of the goods concerned by the definitive anti-dumping duties imposed by the contested regulation and that that undertaking is thus part of the European Union industry taken into consideration in that regulation.

15      That is confirmed by recitals 11 and 24 of Commission Regulation (EU) No 1205/2013 of 26 November 2013 imposing a provisional anti-dumping duty on imports of solar glass from the People’s Republic of China (OJ 2013 L 316, p. 8), which refer expressly to GMB amongst the European Union producers concerned.

16      In the second place, it is clear from recitals 10, 11 and 24 of Regulation No 1205/2013 that GMB is one of the European Union producers in whose name the association EU ProSun Glass lodged the complaint which led to the investigation that resulted in the adoption of that regulation, and subsequently of the contested regulation, and that that undertaking participated actively in the later stages of that investigation.

17      Given that the definitive anti-dumping duties imposed by the contested regulation were fixed following the finding that material injury had been caused to the European Union producers, if the annulment of the contested regulation declared by the General Court in the judgment under appeal were to take effect, even in part, this would be liable to have a direct and immediate impact on GMB’s commercial interests.

18      On the basis of an assessment of all those elements, GMB must be regarded as having established, to the requisite legal standard, an interest in the result of the case and must therefore be granted leave to intervene in the present case in support of the form of order sought by the Commission.

19      As regards the procedural rights of the intervener, it must be held that GMB’s application to intervene was submitted within the period of one month laid down in Article 190(2) of the Rules of Procedure of the Court of Justice, with the result that it is entitled to receive a copy of every procedural document served on the parties, under Article 131(4) of those rules, read in conjunction with Article 190(1) thereof, and in the absence of any request by those parties seeking to have certain documents excluded from such notification.

 Costs

20      Under Article 137 of the Rules of Procedure, which applies to the procedure on appeal by virtue of Article 184(1) thereof, a decision as to costs is to be given in the judgment or order which closes the proceedings.

21      In the present case, as the application for leave to intervene submitted by GMB has been granted, the costs relating to its intervention must be reserved.

On those grounds, the President of the Court orders:

1.      GMB Glasmanufaktur Brandenburg GmbH is granted leave to intervene in Case C‑301/16 P in support of the form of order sought by the European Commission.

2.      The registrar shall ensure that a copy of all procedural documents is served on GMB Glasmanufaktur Brandenburg GmbH.

3.      A period shall be prescribed within which GMB Glasmanufaktur Brandenburg GmbH is to set out in writing the pleas in law in support of the form of order which it seeks.

4.      The costs are reserved.

[Signatures]


* Language of the case. English.