ORDER OF THE COURT OF FIRST INSTANCE (Fourth Chamber)
31 January 2008(*)
(Dumping – Reimbursement of anti-dumping duties – Annulment of the regulation imposing a definitive anti-dumping duty – No need to adjudicate – Rules governing costs)
In Case T‑151/06,
Aluminium Silicon Mill Products GmbH, established in Zug (Switzerland), represented by L. Ruessmann and A. Willems, lawyers,
applicant,
v
Commission of the European Communities, represented by P. Stancanelli and T. Scharf, acting as Agents,
defendant,
APPLICATION for annulment of Commission Decision C(2006) 1183 final of 3 April 2006 rejecting in part the applications for reimbursement of anti-dumping duties levied on imports of silicon originating in Russia,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Fourth Chamber),
composed of O. Czúcz (Rapporteur), President, J.D. Cooke and I. Labucka, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts and procedure
1 The applicant is a company incorporated under Swiss law engaged, inter alia, in the sale and marketing of semi-finished silicon products on the Community market. It purchases silicon from two producers established in Russia which are related to it.
2 On 10 July 2003, the Commission adopted Regulation (EC) No 1235/2003 imposing a provisional anti-dumping duty on imports of silicon originating in Russia (OJ 2003 L 173, p. 14).
3 On 22 December 2003, the Council adopted Regulation (EC) No 2229/2003 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of silicon originating in Russia (OJ 2003 L 339, p. 3) (‘the Definitive Regulation’). The Definitive Regulation imposed anti-dumping duties of 22.7% on imports of silicon from the producers related to the applicant.
4 Between 22 March 2004 and 20 January 2005, through the intermediary of the Netherlands customs authority, the applicant submitted three requests for reimbursement of anti-dumping duties as provided for in Article 11(8) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), as amended. The requests for reimbursement related to transactions carried out between 1 October 2003 and 26 July 2004 for a total amount of EUR 482 273.08.
5 On 3 April 2006, the Commission adopted Decision C(2006) 1183 final, by which it ordered the reimbursement requested by the applicant up to the level of EUR 280 440.16 and rejected the request as to the remainder (‘the contested decision’).
6 By application lodged at the Registry of the Court of First Instance on 9 June 2006 the applicant brought the present action.
7 By judgment of 14 March 2007 in Case T-107/04 Aluminium Silicon Mill Products v Council [2007] ECR II-0000, the Court of First Instance (Third Chamber) annulled the Definitive Regulation in so far as it imposed anti-dumping duties on the applicant.
8 On 11 August 2007, the Commission published a Notice concerning anti-dumping measures on imports of silicon originating in Russia (OJ 2007 C 188, p. 5) (‘the Notice’).
9 According to the Notice, ‘the definitive anti-dumping duties paid [by the applicant] pursuant to [the Definitive] Regulation and the provisional duties definitively collected in accordance with Article 2 of [the Definitive] Regulation should be reimbursed’ and ‘[t]he reimbursement must be requested from national customs authorities in accordance with applicable customs legislation’.
10 By way of measures of organisation of procedure, the Court requested the parties to reply in writing to questions regarding the effect of the judgment in Aluminium Silicon Mill Products v Council and of the Notice, on the present proceedings. The parties complied with that request within the time-limit granted.
Forms of order sought
11 The applicant claims that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
12 The Commission contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
13 The Commission, in its reply of 11 July 2007 to the written question put by the Court, is of the opinion that, as a consequence of the judgment in Aluminium Silicon Mill Products v Council, the action has become devoid of purpose. The applicant takes the view, in its reply of 27 August 2007 to the written question put by the Court, that, following the publication of the Notice, there is no longer any need for the Court to adjudicate on the present action. Both parties, however, retain their respective claims for costs.
Law
14 Under Article 113 of the Rules of Procedure of the Court of First Instance, the Court may at any time, of its own motion, after hearing the parties, declare that the action has become devoid of purpose and that there is no need to adjudicate on it.
15 In the present case, the Court considers that it has sufficient information from the case-file to decide the matter without taking further steps in the proceedings.
16 It must be noted that, following the judgment in Aluminium Silicon Mill Products v Council, the national customs authorities are required, upon the request of the applicant, to reimburse all of the anti-dumping duties that it has paid pursuant to the Definitive Regulation, including those which were the subject of requests for reimbursement which were rejected in part by the Commission in the contested decision.
17 It follows that the applicant has secured the result which the present action could obtain for it, so that there is no need to adjudicate on the action.
Costs
18 The applicant claims that the Commission should bear all the costs. It submits that, but for the errors committed in the proceedings which led to the adoption of the Definitive Regulation, no anti-dumping duty would have been levied on the applicant’s imports, so that it would not have had to submit the requests for reimbursement, the Commission’s refusal of which led to the present action.
19 According to the Commission, the applicant should be ordered to pay the costs. The Notice illustrates that the present action was unnecessary, since the annulment of the Definitive Regulation by the judgment in Aluminium Silicon Mill Products v Council triggered the reimbursement of the anti-dumping duties which was requested and was refused in part by the contested decision.
20 In addition, according to the Commission, in its judgment in Aluminium Silicon Mill Products v Council the Court did not establish that the anti-dumping duties would not have been imposed if the manifest errors of assessment and the error of fact which it found had not been made in the Definitive Regulation.
21 Finally, the Commission contends that it is the Council which made the errors justifying the annulment of the Definitive Regulation. Therefore, also in view of the fact that in the case which gave rise to the judgment in Aluminium Silicon Mill Products v Council the Council was the defendant, it would not be equitable to order the Commission to bear the costs.
22 As a preliminary point, it should be borne in mind that, under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are in the discretion of the Court of First Instance.
23 First, it should be recalled that the date on which the judgment in Aluminium Silicon Mill Products v Council was delivered is later than the date on which the action was brought, so that the applicant had, at the time when the action was brought, an interest in bringing proceedings.
24 Secondly, it must be pointed out that the investigation pursuant to Article 6 of Regulation No 384/96, which provided the information and the analysis of that information on the basis of which the Definitive Regulation was adopted, was conducted entirely by the Commission.
25 In addition, as is clear from paragraphs 81 to 109, 117 and 118 of the judgment in Aluminium Silicon Mill Products v Council, two manifest errors of assessment relating to the causal link between the dumped imports and the alleged injury suffered by the Community industry, which of themselves justify the annulment of the Definitive Regulation, were already present in Regulation No 1235/2003 which imposed a provisional anti-dumping duty. Those errors undermine the Commission’s main argument, repeated by the Council, on which the establishment of the causal link was based.
26 Thirdly, the Commission accepts in its Notice that the anti-dumping duties imposed on the applicant must be reimbursed in full. Thus, it has necessarily reversed its position with regard to its refusal to reimburse part of the duties paid, as stated in the operative part of the contested decision.
27 In those circumstances, the Court considers that the Commission must be ordered to pay the costs.
On those grounds,
THE COURT OF FIRST INSTANCE (Fourth Chamber)
hereby orders:
1. There is no need to adjudicate on the action;
2. The Commission is ordered to pay the costs.
Luxembourg, 31 January 2008.