ORDER OF THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
14 December 2010 (*)
(Intervention – Interest in the result of the case – Removal of an application for leave to intervene)
In Case T‑537/08,
Cixi Jiangnan Chemical Fiber Co. Ltd, established in Zhejiang (China),
Cixi Santai Chemical Fiber Co. Ltd, established in Zhejiang (China),
Cixi Sansheng Chemical Fiber Co. Ltd, established in Ningbo (China),
Jiangyin Changlong Chemical Fibre Co. Ltd, established in Jiangyin (China),
Ningbo Dafa Chemical Fiber Co. Ltd, established in Zhejiang (China),
Xiake Color Spinning Co. Ltd, established in Jiangsu (China),
Zhejiang Waysun Chemical Fiber Co. Ltd, established in Zhejiang (China),
Zhejiang Anshun Pettechs Fibre Co. Ltd, established in Zhejiang (China),
represented by J.-F. Bellis, lawyer, and G. Vallera, Barrister,
applicants,
v
Council of the European Union, represented by J.-P. Hix and B. Driessen, acting as Agents, assisted initially by G. Berrisch and G. Wolf, and subsequently by G. Berrisch, lawyers,
defendant,
supported by
European Commission, represented by H. van Vliet and M. França, acting as Agents,
intervener,
THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT OF THE EUROPEAN UNION,
makes the following
Order
1 By application lodged at the Registry of the General Court on 9 December 2008, the applicants Cixi Jiangnan Chemical Fiber Co. Ltd, Cixi Santai Chemical Fiber Co. Ltd, Cixi Sansheng Chemical Fiber Co. Ltd, Jiangyin Changlong Chemical Fibre Co. Ltd, Ningbo Dafa Chemical Fiber Co. Ltd, Xiake Color Spinning Co. Ltd, Zhejiang Waysun Chemical Fiber Co. Ltd and Zhejiang Anshun Pettechs Fibre Co. Ltd brought an action for annulment of Council Regulation (EC) No 893/2008 of 10 September 2008 maintaining the anti-dumping duties on imports of polyester staple fibres originating in Belarus, the People’s Republic of China, Saudi Arabia and Korea following a partial interim review pursuant to Article 11(3) of Regulation (EC) No 384/96 (OJ 2008 L 247, p. 1) (‘the contested regulation’) with retroactive effect as of 29 December 2006.
2 A summary of the application initiating the proceedings was published in the Official Journal of the European Union of 7 March 2009 (OJ 2009 C 55, p. 29).
3 By document lodged at the Court Registry on 1 April 2009, the Commission of the European Communities sought leave to intervene in the present case in support of the form of order sought by the Council of the European Union. By order of 3 June 2009, the President of the First Chamber of the Court granted that application for leave to intervene.
4 By document lodged at the Court Registry on 20 April 2009, the Gesamtverband der Deutschen Textil und Modeindustrie eV (‘the Gesamtverband’), Lück GmbH & Co KG (‘Lück’), Sandler AG (‘Sandler’), F.A.N. Frankenstolz, H. Neumeyer GmbH & Co KG (‘Frankenstolz’) and Cetex-Rheinfaser GmbH (‘Cetex-Rheinfaser’) applied for leave to intervene in the present case in support of the form of order sought by the applicants. By document lodged at the Court Registry on 15 May 2009, that application was rectified and Frankenstolz stated, at that time, that it was withdrawing its application for leave to intervene. The application for leave to intervene lodged by the Gesamtverband, Lück, Sandler and Cetex-Rheinfaser (‘the application for leave to intervene’) was served on the parties in accordance with the first subparagraph of Article 116(1) of the Rules of Procedure of the General Court, along with Frankenstolz’s withdrawal of its application for leave to intervene. Within the period granted for that purpose, the defendant raised objections to the application for leave to intervene, the applicants, for their part, stating that they did not oppose that application. Neither the applicants nor the defendant submitted observations on Frankenstolz’s withdrawal of its application for leave to intervene.
Arguments submitted to the Court
5 The applicants for leave to intervene submit that Lück and Sandler are importers and users of polyester staple fibres, that Cetex-Rheinfaser is also an importer of those products and that, in that capacity, those three companies are directly affected by the contested regulation in that it does not amend Council Regulation (EC) No 428/2005 of 10 March 2005 imposing a definitive anti-dumping duty on imports of polyester staple fibres originating in the People’s Republic of China and Saudi Arabia, amending Regulation (EC) No 2852/2000 imposing a definitive anti-dumping duty on imports of polyester staple fibres originating in the Republic of Korea and terminating the anti-dumping proceeding in respect of such imports originating in Taiwan (OJ 2005 L 71, p. 1). In their submission, the continued imposition of the anti-dumping duties established by the contested regulation has an impact on the activities of those companies. In order to prove that those companies have legal standing to intervene, the applicants for leave to intervene refer to the contested regulation, in which the Council stated, in recital 12, that Lück was among the Community users whose information was verified during the review proceedings and, in recital 52, that Lück and Sandler cooperated in their capacity as users of the goods in question originating in the countries concerned.
6 The applicants for leave to intervene submit that the Gesamtverband represents 80% of the German textile sector, that it represented its members in the review proceedings and that the users and importers which are members of the Gesamtverband will be significantly affected by the judgment to be delivered in the case.
7 The applicants for leave to intervene add that, should the order sought by the applicants be granted, it would have an immediately beneficial effect on them, since the lifting of the anti-dumping duties at issue would, in their view, make it possible for them to source cheaper fibres and therefore be more competitive.
8 The Council begins by contesting the standing of the applicants for leave to intervene, arguing that participation in the review proceedings is not enough to claim a sufficient interest in the result of the case and that, moreover, Cetex-Rheinfaser did not participate in those proceedings.
9 Secondly, if the Court were to accept the intervention of the three companies, in addition to that of the Gesamtverband, that would give rise to the risk of multiple interventions, which could jeopardise the efficiency of the proceedings.
10 Thirdly, since Lück, Sandler and Cetex-Rheinfaser have not, in the Council’s submission, shown that they import or use polyester staple fibres manufactured by the applicants or by any other Chinese producer of such goods, they have not demonstrated that they have a direct interest in having the Court annul the contested regulation in so far as it concerns the applicants, it being pointed out that the latter do not have standing to seek the annulment of the contested regulation in its entirety.
11 Fourthly and lastly, the Gesamtverband has not shown that it has a sufficient interest in the result of the case, since, according to the Council, it has failed to provide evidence that it represents an appreciable number of undertakings active in the sector concerned, does not state whether its objects include that of representing the interests of its members, does not submit any argument as to whether the present case may raise questions of principle affecting the functioning of the sector concerned, and does not provide any evidence capable of showing that the interests of its members may be affected to an appreciable extent by the judgment to be delivered in the case.
Findings of the President
12 Under the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 thereof, any person which can establish an interest in the result of a case, other than cases between Member States, between Community institutions or between Member States and Community institutions, is entitled to intervene.
13 It has consistently been held that the concept of an interest in the result of the case, within the meaning of that provision, must be defined in the light of the precise subject-matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the form of order sought and not as an interest in relation to the pleas in law and arguments put forward. The expression ‘result’ is to be understood as meaning the operative part of the final judgment which the parties ask the Court to deliver. It is appropriate, in particular, to ascertain whether the intervener is directly affected by the contested measure and whether his interest in the result of the case is established (see the order in Case T‑15/02 BASF v Commission [2003] ECR II‑213, paragraph 26 and the case-law cited).
14 According to equally settled case-law, intervention is permissible by representative associations whose object is to protect their members in cases raising questions of principle liable to affect those members (orders of the President of the Court of Justice in Joined Cases C‑151/97 P(I) and C‑157/97 P(I) National Power and PowerGen [1997] ECR I‑3491, paragraph 66, and in Case C‑151/98 P Pharos v Commission [1998] ECR I‑5441, paragraph 6; orders of the President of the Court in Case T‑201/04 R Microsoft v Commission [2004] ECR II‑2977, paragraph 37, and in Case T-53/01 R Poste Italiane v Commission [2001] ECR II-1479, paragraph 51). More specifically, an association may be granted leave to intervene in a case if it represents a significant number of undertakings active in the sector concerned, if its objects include the protection of the interests of its members, if the case may raise questions of principle affecting the functioning of the sector concerned and if the interests of its members may therefore be affected significantly by the forthcoming judgment (orders of the Court in Case T-87/92 Kruidvat v Commission [1993] ECR II‑1375, paragraph 14, and in Case T-253/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission [2004] ECR II-1603, paragraph 21).
15 In the present case, it should be observed, as a preliminary point, that, in the form of order sought, the applicants seek annulment of the contested regulation in its entirety. They thus intend to challenge the Council’s decision to maintain the anti-dumping duties introduced by the contested regulation in respect of polyester staple fibres originating in the countries concerned.
16 However, irrespective of the question whether such a form of order sought is admissible, since, contrary to the Council’s submissions, that question need not be ruled on at the stage of examining applications for leave to intervene (see, to that effect, order of 9 October 2008 in Case T‑469/07 Philips Lighting Poland & Philips Lighting v Council, not published in the ECR, paragraph 31), suffice it to note that the applicants for leave to intervene have not provided any evidence to show that those companies are importers of the goods concerned by the anti-dumping duties introduced by the contested regulation, or even importers of the goods manufactured by the applicants. As rightly pointed out by the Council, they merely state that Lück and Sandler are importers and users of polyester staple fibres and that Cetex-Rheinfaser is an importer of those goods. Moreover, while they rely on recitals 12 and 52 in the preamble to the contested regulation, which are not disputed, those recitals indicate merely that Lück and Sandler are users of polyester staple fibres and that they account for a portion of the imports of those products originating in the countries concerned by the contested regulation. Furthermore, no information whatsoever concerning Cetex-Rheinfaser can be gleaned from a reading of the contested regulation, as it is not included in the list of companies which cooperated during the review proceedings.
17 Thus, there is nothing in the case-file to show that the three companies applying for leave to intervene are required to pay the anti-dumping duties levied on the goods concerned by the contested regulation. Consequently, even if the form of order sought by the applicants were to be granted, it is not established that there would be any direct and certain benefit for those three companies either as importers of polyester staple fibres originating in the countries concerned by the contested regulation or as importers of polyester staple fibres manufactured by the applicants (see, to that effect, order of the Court of Justice in Case C‑245/95 P Commission v NTN Corporation [1996] ECR I‑559, paragraph 15, and order in Philips Lighting Poland and Philips Lighting v Council, paragraph 29).
18 Likewise, the applicants for leave to intervene have not provided any evidence to show that the Gesamtverband represents a significant number of undertakings active in the sector concerned and that its object is to protect the interests of its members. Suffice it to note in that regard that they did not attach either the membership list of the Gesamtverband nor its statutes, or any other document attesting to the extent of its representativity or its object. They merely refer to recitals 12 and 53 in the preamble to the contested regulation, which contain only very general information in that regard. According to those recitals, first, the Gesamtverband is a confederation of the German textile and fashion industry representing both the spinning and the non-woven sectors and comprising, inter alia, the Industrieverband Garne-Gewebe-Technische Textilien eV (IVGT) and the Verband der Deutschen Heimtextilien-Industrie eV. Second, the Gesamtverband, those latter two associations and a third European association representing companies of the non-woven sector made submissions asking the Commission to terminate the existing measures. Third, the representativity of all these associations corresponds to around 30% of total European Union consumption of polyester staple fibres, although no indication is given as to the share accounted for by the Gesamtverband’s members.
19 Since an interest in the result of the case for the purposes of the second paragraph of Article 40 of the Statute of the Court of Justice has not been established, the application for leave to intervene must be dismissed.
Costs
20 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 which closes the proceedings. The present order closes the proceedings with regard to the Gesamtverband, Lück, Sandler, Cetex-Rheinfaser and Frankenstolz. Consequently, a ruling must be made as to the costs relating to the application for leave to intervene and to the withdrawal of Frankenstolz’s application for leave to intervene.
21 Article 87(2) of the Rules of Procedure provides that the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In the present case, since the Gesamtverband, Lück, Sandler and Cetex-Rheinfaser have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Council.
22 Under the first subparagraph of Article 87(5) of the Rules of Procedure, a party who discontinues or withdraws from proceedings is to be ordered to pay the costs if they have been applied for in the other party’s observations on the discontinuance. In the present case, as the parties did not ask for Frankenstolz to be ordered to pay the costs, that company must be removed from the case and the parties and Frankenstolz must be ordered to bear their own costs associated with the latter’s application for leave to intervene.
On those grounds,
THE PRESIDENT OF THE EIGHTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. The application of the Gesamtverband der Deutschen Textil und Modeindustrie eV, Lück GmbH & Co KG, Sandler AG and Cetex-Rheinfaser GmbH for leave to intervene is dismissed.
2. Frankenstolz, H. Neumeyer GmbH & Co KG is removed from Case T‑537/08 as an applicant for leave to intervene.
3. The Gesamtverband der Deutschen Textil und Modeindustrie eV, Lück GmbH & Co KG, Sandler AG and Cetex-Rheinfaser GmbH shall bear the costs relating to their application for leave to intervene.
4. The parties and Frankenstolz, H. Neumeyer GmbH & Co KG shall bear their own costs relating to that company’s application for leave to intervene.
Luxembourg, 14 December 2010.