ORDER OF THE PRESIDENT OF THE FOURTH CHAMBER OF THE COURT OF FIRST INSTANCE
9 October 2008 (*)
(Intervention – Entitlement to intervene – Interest in the result of the case – Application for confidential treatment)
In Case T‑469/07,
Philips Lighting Poland S.A., established in Pila (Poland) and Philips Lighting BV, established in Eindhoven (Netherlands), represented by M.-L. Catrain‑González, lawyer, and E. Wright, barrister,
applicants,
v
Council of the European Union, represented by J.-P. Hix, acting as Agent, assisted by G. Berrisch and G. Wolf, lawyers,
defendant,
supported by
Commission of the European Communities, represented by H. van Vliet and K. Talabér-Ritz, acting as Agents,
Osram GmbH, established in Munich (Germany), represented by R. Bierwagen, lawyer,
interveners,
APPLICATION for annulment of Council Regulation (EC) No 1205/2007 of 15 October 2007 imposing anti-dumping duties on imports of integrated electronic compact fluorescent lamps (CFL-i) originating in the People’s Republic of China following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 384/96 and extending to imports of the same product consigned from the Socialist Republic of Vietnam, the Islamic Republic of Pakistan and the Republic of the Philippines (OJ 2007 L 272, p.1),
THE PRESIDENT OF THE FOURTH CHAMBER OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
makes the following
Order
Facts and procedure
1 On 15 October 2007, the Council adopted Regulation (EC) No 1205/2007 imposing anti-dumping duties on imports of integrated electronic compact fluorescent lamps (CFL-i) originating in the People’s Republic of China following an expiry review pursuant to Article 11(2) of Council Regulation (EC) No 384/96 and extending to imports of the same product consigned from the Socialist Republic of Vietnam, the Islamic Republic of Pakistan and the Republic of the Philippines (OJ 2001 L 272, p. 1, hereinafter ‘the Contested Regulation’).
2 By application lodged at the Registry of the Court of First Instance on 21 December 2007, Philips Lighting Poland S.A. and Philips Lighting BV (hereinafter ‘the Philips Companies’) brought an action for annulment of the Contested Regulation, in its entirety or in so far as it concerns them.
3 By document lodged at the Registry on 27 March 2008, Osram GmbH applied for leave to intervene in the present proceedings in support of the form of order sought by the Council. By order of 9 June 2008, the President of the Fourth Chamber of the Court granted that application to intervene.
4 By document lodged at the Registry on 27 March 2008, Hangzhou Duralamp Electronics Co., Ltd (hereinafter ‘Hangzhou’), represented by M. Gambardella and V. Villante, lawyers, applied for leave to intervene in the present proceedings in support of the form of order sought by the Philips Companies.
5 By document lodged at the Registry on 3 April 2008, the Commission of the European Communities applied for leave to intervene in the present proceedings in support of the form of order sought by the Council. By order of 9 June 2008, the President of the Fourth Chamber of the Court granted that application to intervene.
6 By document lodged at the Registry on 15 April 2008, General Electric Hungary Ipari és Kereskedelmi ZRt. (hereinafter ‘GE Hungary’), represented by P. De Baere, lawyer, applied for leave to intervene in the present proceedings in support of the form of order sought by the Philips Companies.
7 Hangzhou and GE Hungary’s applications to intervene were notified to the parties pursuant to Article 116(1) of the Rules of Procedure of the Court of First Instance.
8 By document lodged at the Registry on 25 April 2008, the Council requested the Court to dismiss Hangzhou’s application to intervene. By document lodged at the Registry on 27 April 2008, the Philips Companies informed the Court that they had no observations to make concerning that application. By document lodged at the Registry on the same date, they requested that, pursuant to Article 116(2) of the Rules of Procedure, the Court treat as confidential certain parts of certain annexes to their application and produced, for that purpose, a non-confidential version of the documents in question.
9 By document lodged at the Registry on 9 June 2008, the Philips Companies informed the Court that they had no observations to make concerning GE Hungary’s application to intervene. By document lodged at the Registry on 11 June 2008, they requested that, pursuant to Article 116(2) of the Rules of Procedure, the Court treat as confidential certain parts of certain annexes to their application and produced, for that purpose, a non-confidential version of the documents in question. By document lodged at the Registry on 11 June 2008, the Council requested the Court to dismiss GE Hungary’s application to intervene.
10 By letter dated 14 July 2008, the Court invited Hangzhou and GE Hungary to submit their observations on the objections raised by the Council, which they did within the time-limit set for doing so.
The applications to intervene
Arguments of the parties
11 Hangzhou points out that it also brought an action for the annulment of the Contested Regulation before the Court of First Instance (Case T-459/07) and states that some of the pleas in law which it submits in that action overlap with some of those put forward by the Philips Companies in the present case.
12 Hangzhou also claims that it is directly and individually affected by the Contested Regulation because it imposes an anti-dumping duty of 66.1 % on its products.
13 GE Hungary maintains that, in addition to producing and selling CFL-i in the Community, it imports significant quantities of such lamps from a related supplier in the People’s Republic of China. The prolongation of the anti-dumping measures provided for by the Contested Regulation will affect GE Hungary’s import activities and prevent it from ‘[optimising] its product mix’.
14 GE Hungary adds that it was identified by the Commission as being one of the four manufacturers of CFL-I in the Community, that it replied to the questionnaires sent by the Commission, that the latter carried out verification visits at its premises in Hungary and that it actively participated in the expiry review procedure. GE Hungary contends that it objected to the prolongation of the anti-dumping duties concerned.
15 In their observations on the objections raised by the Council to their application to intervene, Hangzhou and GE Hungary point out that the Philips Companies do not seek the annulment of the Contested Regulation only in so far as it concerns the latter companies but also and above all of the Contested Regulation in its entirety. Hangzhou observes that nothing precludes the Philips Companies from persuading the Court that in this specific case there are good reasons to have the Contested Regulation annulled in its entirety. For its part, GE Hungary claims that the issue of the right to lodge a successful request for leave to intervene in these proceedings must be dissociated from the issue of the admissibility of the Philips Companies’ request that the Contested Regulation be annulled as a whole. GE Hungary also submits that the findings made by the Court of Justice in its judgment in Case C-239/99 Nachi Europe [2001] ECR I‑1197 are not applicable in the present case. In that respect GE Hungary draws attention particularly to the fact that the applicants in Nachi Europe were exporters of the product concerned whereas the Philips Companies have brought the present case in their capacity as importers of CFL-I from China into the Community.
16 The Council states that the Philips Companies seek the annulment of the Contested Regulation in so far as it affects them. Thus, to be admitted as interveners, Hangzhou and GE Hungary must establish a direct and existing interest in the annulment of the Contested Regulation in so far as it affects the Philips Companies.
17 In the Council’s view, Hangzhou and GE Hungary cannot establish such an interest. The Council points out that, in its judgment in Nachi Europe, the Court of Justice held that, where a regulation which introduces an anti-dumping duty imposes different duties on a series of undertakings, an undertaking is individually concerned only by those provisions which impose on it a specific anti-dumping duty and determine the amount thereof, and not by those provisions which impose anti-dumping duties on other undertakings, with the result that an action brought by that undertaking will be admissible only in so far as it seeks the annulment of those provisions of the regulation that exclusively concern it. Referring to paragraph 24 of that judgment, the Council adds that the scope of the annulment which the Community judicature pronounces may not go further than that sought by the applicant, since it would be ultra vires for the Community judicature to rule ultra petita. Finally, referring to paragraph 27 of the same judgment, the Council states that the annulment of the operative part of a regulation in so far as it imposes an anti-dumping duty on a particular exporter, does not affect the validity of the other aspects of that regulation, in particular the anti-dumping duty applicable to the product concerned as manufactured by other exporters.
18 The Council concludes from the foregoing that if the Court were to consider that the present action is well founded, it could annul the Contested Regulation only in so far as it concerns the Philips Companies, and not in so far as it concerns Hangzhou or GE Hungary.
19 As regards, more particularly, Hangzhou, the Council adds that its application for annulment and the parallel application lodged by the Philips Companies each have to be considered on their own merits. The Council considers that is irrelevant whether and to what extent the legal questions to be decided in the present case and in the case brought by Hangzhou overlap.
20 As regards, more particularly, GE Hungary, the Council does not deny that that company’s interests are affected by the fact that it must pay anti-dumping duties on imports of CFL-I from China. The Council considers, however, that does not mean that GE Hungary has a direct and existing interest in the annulment of the Contested Regulation in so far as it imposes anti-dumping duties on imports of CFL-I produced by the Philips Companies.
Findings of the Court
21 In accordance with the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to the procedure before the Court of First Instance pursuant to the first paragraph of Article 53 of that Statute, any person establishing an interest in the result of any case submitted to the Court of First Instance, save in cases between Member States, between institutions of the Communities or between Member States and institutions of the Communities, may intervene in that case. Under the fourth paragraph of Article 40 of the Statute of the Court of Justice, an application to intervene is to be limited to supporting the form of order sought by one of the parties.
22 The concept of an interest in the result of the case, within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice, must be defined in the light of the particular subject-matter of the dispute and be understood as meaning a direct, present interest in the ruling on the form of order sought (order of the Court of Justice of 8 April 1981 in Joined Cases 197/80 to 200/80, 243/80, 245/80 and 247/80 Ludwigshafener Walzmühle Erling and Others v Council and Commission [1981] ECR 1041, paragraph 9; and order of the President of the Court of Justice of 6 March 2003 in Case C-186/02 P Ramondín and Ramondín Cápsulas v Commission [2003] ECR I‑2415, paragraph 7).
23 The expression ‘solution’ is to be understood as meaning the operative part of the final judgment which the parties ask the Court to deliver. It is necessary, in particular, to ascertain whether the intervener is directly affected by the contested decision and whether his interest in the result of the case is established (order of the Court of First Instance of 25 February 2003 in Case T‑15/02 BASF v Commission [2003] ECR II‑213, paragraph 26).
24 In the present case, the Council puts forward two main arguments in support of its objection to the granting of the applications for leave to intervene.
25 First, the Council alleges that the Philips Companies seek the annulment of the Contested Regulation only in so far as it concerns them and that Hangzhou and GE Hungary have no interest in obtaining such a result.
26 That allegation, however, is factually incorrect. Indeed, as Hangzhou and GE Hungary rightly point out, it is clear from the form of order sought by the Philips Companies that the latter seek the annulment of the Contested Regulation in its entirety and not just to the extent that it concerns them.
27 Contrary to the impression that the Council seeks to give, the Court would not rule ultra petita if it should decide to annul the Contested Regulation in its entirety. It is clear that in that event both Hangzhou and GE Hungary would be affected by such an outcome.
28 Thus with regard to Hangzhou it is sufficient to note that the latter is one of the companies on which antidumping duties are imposed by the Contested Regulation.
29 With regard to GE Hungary it is to be noted that that company participated in the expiry review procedure which led to the adoption of the Contested Regulation, that it is identified in that regulation as one of the Community manufacturers which furnished information upon which the issue of likely continuation of dumping and injury was determined and that it objected to the prolongation of the anti-dumping duties concerned. Furthermore, besides producing and selling CFL-i in the Community, GE Hungary imports significant quantities of CFL-i from the People’s Republic of China. Moreover it is clear from the Contested Regulation itself and particularly from recitals 98 and 100, that the anti-dumping duties concerned have negative effects on GE Hungary’s activities.
30 Second, relying on the judgment of the Court of Justice in Nachi Europe, the Council claims that, where a regulation which introduces an anti-dumping duty imposes different duties on a series of undertakings, an undertaking is individually concerned only by those provisions which impose on it a specific anti-dumping duty and fix the amount thereof, with the result that an action brought by that undertaking will be admissible only in so far as it seeks the annulment of those provisions of the regulation that exclusively concern it. The Council considers that the Philips Companies can thus bring an admissible action to annul the Contested Regulation only to the extent that the latter affect them and that Hangzhou and GE Hungary have no interest in such an outcome.
31 Those arguments must be rejected, without it being necessary to examine whether the findings made by the Court of Justice in its judgment in Nachi Europe are applicable in this case. Indeed, the Court of First Instance does not rule on the admissibility of an action when it rules by order pursuant to the third paragraph of Article 116(1) of the Rules of Procedure on an application for leave to intervene (orders in Cases T‑191/96 CAS Succhi di Frutta v Commission [1998] ECR II-573, paragraph 27, and T-273/04 Brandt Industries v Commission not published in the ECR, paragraph 30).
32 It follows from the foregoing that Hangzhou and GE Hungary must be granted leave to intervene in the present proceedings in support of the form of order sought by the Philips Companies.
33 The notice in the Official Journal of the European Union referred to in Article 24(6) of the Rules of Procedure having been published on 23 February 2008, the applications for leave to intervene were made within the period laid down in Article 115(1) of these Rules of Procedure and the provisions laid down in Article 116(2) to (4) thereof are therefore applicable.
The applications for confidential treatment
34 At this stage, the provision to Hangzhou and GE Hungary of the procedural documents served or to be served on the parties will be restricted to a non-confidential version. A decision as to whether the applications for confidentiality are well founded shall, if necessary, be taken at a later stage in the light of any objections submitted on that issue.
On those grounds,
THE PRESIDENT OF THE FOURTH CHAMBER OF THE COURT OF FIRST INSTANCE
hereby orders:
1) Hangzhou Duralamp Electronics Co., Ltd, and General Electric Hungary Ipari és Kereskedelmi ZRt. are granted leave to intervene in Case T‑469/07 in support of the form of order sought by Philips Lighting Poland S.A. and Philips Lighting BV .
2) The registrar shall provide those interveners with a non-confidential version of each of the procedural documents served on the parties.
3) A period shall be fixed for those interveners to submit observations on the applications for confidential treatment. The decision on whether those applications are well founded is reserved.
4) A period shall be fixed for those interveners to submit a statement in intervention, without prejudice to the possibility of supplementing it later, should the need arise, in the light of a decision as to whether the applications for confidential treatment are well founded.
5) The costs are reserved.
Luxembourg, 9 October 2008