ORDER OF THE GENERAL COURT (Fifth Chamber)
28 September 2021 (*)
(Action for annulment – Dumping – Imports of aluminium extrusions originating in China – Registration of imports – No interest in bringing proceedings – Inadmissibility)
In Case T‑611/20,
Airoldi Metalli SpA, established in Molteno (Italy), represented by M. Campa, D. Rovetta, G. Pandey, V. Villante and M. Pirovano, lawyers,
applicant,
v
European Commission, represented by G. Luengo and P. Němečková, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU seeking annulment of Commission Implementing Regulation (EU) 2020/1215 of 21 August 2020 making imports of aluminium extrusions originating in the People’s Republic of China subject to registration (OJ 2020 L 275, p. 16), in so far as it concerns the applicant,
THE GENERAL COURT (Fifth Chamber),
composed of D. Spielmann, President, U. Öberg and O. Spineanu-Matei (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicant, Airoldi Metalli SpA, is an Italian company specialising in the import, distribution and processing of non-ferrous metals, mainly aluminium and its alloys. In the course of its activities, it imports, inter alia, from the People’s Republic of China, aluminium extrusions, such as those referred to in Article 1(1) of Commission Implementing Regulation (EU) 2020/1215 of 21 August 2020 making imports of aluminium extrusions originating in the People’s Republic of China subject to registration (OJ 2020 L 275, p. 16; ‘the contested regulation’).
2 On 3 January 2020, European Aluminium, an association of European producers of aluminium extrusions, lodged an anti-dumping complaint with the European Commission concerning imports of those products from the People’s Republic of China.
3 On 14 February 2020, the Commission published a notice of initiation of an anti-dumping proceeding concerning imports of aluminium extrusions originating in the People’s Republic of China (OJ 2020 C 51, p. 26; ‘the notice of initiation’), pursuant to Article 5 of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21; ‘the basic regulation’).
4 For the purposes of the anti-dumping proceeding and investigation, the Commission decided to rely on a sample of unrelated importers, in accordance with Article 17 of the basic regulation. Following its request to that effect, submitted to the Commission on 20 February 2020, the applicant was included in the sample and was informed thereof by a letter from the Commission of 26 February 2020.
5 In the notice of initiation, the Commission invited the parties concerned in particular to submit their comments on the complaint or any aspects regarding the initiation of the investigation. On 14 April 2020, the applicant submitted observations to the Commission. On 24 and 29 April 2020, the applicant sent further information and comments to the Commission. On 29 June 2020, it was heard by the Commission as part of the investigation.
6 On 23 June 2020, European Aluminium requested that the Commission make the products concerned by the anti-dumping investigation subject to registration pursuant to Article 14(5) of the basic regulation.
7 On 6 July 2020, the applicant informed the Commission of its opposition to that registration request.
8 On 21 August 2020, the Commission adopted the contested regulation and made the products concerned by the anti-dumping proceeding subject to registration.
Events subsequent to the bringing of the action
9 On 12 October 2020, the Commission adopted, in accordance with Article 7 of the basic regulation, Implementing Regulation (EU) 2020/1428 imposing a provisional anti-dumping duty on imports of aluminium extrusions originating in the People’s Republic of China (OJ 2020 L 336, p. 8; ‘the provisional regulation’). That regulation makes the products covered by the anti-dumping proceeding in question subject to provisional duties at rates varying between 30.4% and 48% (Article 1). It directs customs authorities to discontinue the registration of imports established by the contested regulation (Article 3(1)). It also provides that data collected regarding products which were imported into the EU for consumption not more than 90 days prior to the date of the entry into force of that regulation are to be kept until the entry into force of possible definitive measures or until the termination of the proceeding (Article 3(2)).
10 On 29 March 2021, the Commission adopted Implementing Regulation (EU) 2021/546 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of aluminium extrusions originating in the People’s Republic of China (OJ 2021 L 109, p. 1; ‘the definitive regulation’). The regulation establishes, on the basis of Article 9(4) of the basic regulation, a definitive anti-dumping duty on the products concerned (Article 1). It provides, moreover, that no definitive anti-dumping duty is to be levied retroactively for registered imports, and that data collected in accordance with the contested regulation are no longer to be kept (Article 3).
Procedure and forms of order sought
11 By application lodged at the Registry of the General Court on 2 October 2020, the applicant brought the present action.
12 By separate document lodged at the Court Registry on 18 December 2020, the Commission raised an objection of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court.
13 The applicant submitted observations on the objection of admissibility, which it lodged at the Court Registry on 16 February 2021.
14 By letter of 8 April 2021, the Commission informed the Court that the definitive regulation had been adopted. That document was added to the case file and the parties were invited, by letter from the Registry of 16 April 2021, to specify the consequences which they expected that document to have for the remainder of the proceedings and, in particular, on the objection of inadmissibility in so far as it alleged that the applicant had no interest in bringing proceedings.
15 By letters lodged at the Court Registry on 3 and 5 May 2021, the parties responded to that request and submitted their final observations.
16 The applicant claims that the Court should:
– reject the objection of inadmissibility;
– annul the contested regulation, in so far as it concerns the applicant;
– order the Commission to pay the costs.
17 The Commission contends that the Court should:
– principally, dismiss the action as inadmissible;
– in the alternative, declare that there is no longer any need to adjudicate on the dispute in the main proceedings;
– order the applicant to pay the costs.
Law
Whether there is no longer any need to adjudicate on the action on the ground that it has become devoid of purpose
18 In its reply to the Court’s written question on the consequences which the definitive regulation should have for the remainder of the proceedings and the objection of inadmissibility in so far as it was based on the applicant’s lack of interest in bringing proceedings, the Commission, without making an application for a declaration that there is no need to adjudicate by a separate document under Article 130(2) of the Rules of Procedure, requests that the Court declare that there is no longer any need to adjudicate in the present case, in accordance with Article 131 of the Rules of Procedure. It argues that, following the adoption of the definitive regulation – which provides that no definitive anti-dumping duty is to be levied retroactively for registered imports and that data collected in accordance with the contested regulation are no longer to be kept – the action has become devoid of purpose.
19 It is apparent from its answer to the question referred to in paragraph 18 above that the applicant takes the view, on the contrary, that the definitive regulation in no way deprives the action of its purpose and that it is still necessary to adjudicate in the present case.
20 Pursuant to Article 131(1) of the Rules of Procedure, if the Court declares that the action has become devoid of purpose and that there is no longer any need to adjudicate on it, it may at any time, of its own motion, on a proposal from the Judge-Rapporteur and after hearing the parties, decide to rule by reasoned order.
21 It is settled case-law that the subject‑matter of the case must continue to exist until the final decision (see judgment of 27 June 2013, Xeda International and Pace International v Commission, C‑149/12 P, not published, EU:C:2013:433, paragraph 31 and the case-law cited). In that context, the Court has held that although a contested act had not been formally withdrawn, the dispute retained its subject-matter, even if the contested act had subsequently been deprived of its effects (see, to that effect, judgments of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraphs 48 and 49; of 4 September 2018, ClientEarth v Commission, C‑57/16 P, EU:C:2018:660, paragraph 45; and of 21 January 2021, Leino-Sandberg v Parliament, C‑761/18 P, EU:C:2021:52, paragraph 33).
22 In the present case, Article 3(1) of the provisional regulation directed customs authorities to discontinue the registration measure established by the contested regulation. Moreover, the definitive regulation stated, in Article 3 thereof, that the data collected pursuant to the contested regulation were no longer to be kept. The registration measure introduced by the contested regulation, which ceased to have effect, was therefore brought to an end. However, the contested regulation has not been repealed or formally withdrawn from the EU legal order, of which it therefore continues to be part.
23 Accordingly, it must be held that the present action has retained its purpose and that it is still necessary to adjudicate in the present case.
The objection of inadmissibility
24 Under Article 130(1) and (7) of the Rules of Procedure, the Court may, if the defendant so requests, rule on the question of inadmissibility without going to the substance of the case.
25 In the present case, as the Commission has applied for a decision on the inadmissibility of the action brought by the applicant, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.
26 In its objection of inadmissibility, the Commission argues that the action is inadmissible and puts forward three pleas of inadmissibility, the first, principally, alleging the absence of a challengeable act, and the second and third pleas, in the alternative, alleging lack of interest in bringing proceedings and lack of standing to bring proceedings.
27 The applicant disputes each of those pleas of inadmissibility.
28 The Court considers it appropriate to examine, in the first place, the plea of inadmissibility alleging lack of interest in bringing proceedings.
Preliminary observations
29 The contested regulation was adopted on the basis of Article 14(5) of the basic regulation.
30 In accordance with that provision, the Commission may, after having informed the Member States in due time, direct the customs authorities to take the appropriate steps to register imports, so that measures may subsequently be applied against those imports from the date of such registration.
31 As is apparent from recitals 17 and 23 of the basic regulation, and from recital 36 of the contested regulation, the main purpose of the formality of registration is to ensure that, should an investigation lead to the imposition of definitive anti-dumping duties, those duties may be collected retroactively on the imports thus registered. According to the case-law, the purpose of that retroactivity – and, incidentally, of the formality of registration that it requires – is to prevent the corrective effect of definitive measures being compromised and those measures being deprived of any substance (see, to that effect, judgment of 6 June 2013, Paltrade, C‑667/11, EU:C:2013:368, paragraph 28).
32 The Commission examined the application for registration made by European Aluminium in the light of Article 10(4) of the basic regulation and took the view that the conditions for making the products concerned subject to registration had been satisfied. More specifically, the Commission found first of all that it had, at the stage of adoption of the contested regulation, sufficient evidence that the imports of the products concerned from the People’s Republic of China were dumped. It then considered that evidence of a further substantial rise in imports had been provided. Lastly, the Commission found that it had sufficient evidence to show that further harm would be caused by a continued rise in imports from the People’s Republic of China at even lower prices.
33 On that basis, the Commission decided that imports of the products concerned should be made subject to registration for the purpose of ensuring that, should the investigation result in findings leading to the imposition of anti-dumping duties, those duties can, if the necessary conditions are satisfied, be levied retroactively on the registered imports in accordance with the applicable legal provisions.
34 Article 1(1) of the contested regulation calls on customs authorities to take the appropriate steps to register imports into the European Union of the products covered by the anti-dumping procedure. Article 1(2) and (3) of that regulation provides that registration is to expire nine months following the date of entry into force of the regulation, and invites all interested parties to make their views known in writing, to provide supporting evidence or to request to be heard within 21 days from the date of its publication.
35 As the Commission rightly points out, registration thus constitutes a procedural guarantee, which in no way prejudices the final outcome which it will reserve for the anti-dumping procedure at issue under Article 9 of the basic regulation, any definitive duties which it will impose or the detailed rules for their application, such as retroactivity. In that connection, the contested regulation states, in recital 37 thereof, that any future liability will emanate from the findings of the anti-dumping investigation.
The plea of inadmissibility alleging lack of interest in bringing proceedings
36 In support of its objection of inadmissibility, the Commission claims, inter alia, that the applicant has failed to demonstrate that it has an interest in bringing proceedings. The Commission argues that the contested regulation and the formality of registration did not entail an additional burden or disadvantage for the applicant. The Commission also takes the view that neither the right to protect its economic interests, on which the applicant relies, nor the risk that it might retroactively incur a significant level of duties guaranteed the applicant any interest in bringing proceedings. The Commission maintains that, at the time when the action was brought, the applicant’s interest in bringing proceedings was merely hypothetical and was not vested and present. The possibility of having to pay anti-dumping duties retroactively could arise only through the adoption of a definitive regulation, which had not yet taken place at the time when the action was brought. In that connection, the Commission takes the view that, in any event, the adoption of the definitive regulation put an end to the applicant’s interest in bringing proceedings, inasmuch as the regulation introduces non-retroactive duties.
37 The applicant maintains that it has demonstrated its interest in bringing proceedings and disputes the Commission’s arguments. In addition to general considerations relating to the admissibility of actions for annulment and to the condition of standing to bring proceedings – which are, in the applicant’s submission, irrelevant to the assessment of the existence of an interest in bringing proceedings – it argues, inter alia, that the registration introduced by the contested regulation required importers to follow a special procedure before the customs authorities, which entailed more work and an additional administrative burden. The registration also exposed the applicant to higher costs, linked in particular to the specific features of the registration procedure and to the guarantees required by the customs authorities on registered imports.
38 The applicant also relies on the significant effects which the contested regulation had on the market in which it is active and on the way in which some of its customers, considering the obligation to register imports as a prelude to the imposition of definitive duties by the Commission, stopped buying from the applicant and started buying in third countries other than the People’s Republic of China. The applicant also recalls that it had an interest in avoiding the retroactive application of anti-dumping duties, and that the annulment of the contested regulation was, at the time when the action was brought, a means of achieving that aim.
39 Lastly, the applicant takes the view that the adoption of the definitive regulation and the non-retroactive introduction of anti-dumping duties in no way put an end to its interest in bringing proceedings in the present case. It seeks compensation in respect of the damage caused to it by the contested regulation, and regards the finding of unlawfulness of that regulation in the present action as essential to that end.
40 According to settled case-law, an action for annulment brought by a natural or legal person is not admissible unless the applicant has an interest in seeing the contested measure annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it (see, to that effect, judgments of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraph 61; of 6 September 2018, Bank Mellat v Council, C‑430/16 P, EU:C:2018:668, paragraph 50; and of 17 October 2019, Alcogroup and Alcodis v Commission, C‑403/18 P, EU:C:2019:870, paragraph 24).
41 It is also clear from the case-law that it is the applicant which bears the burden of proving that it has an interest in bringing proceedings, which is an essential and fundamental prerequisite for any legal proceedings (judgment of 4 June 2015, Andechser Molkerei Scheitz v Commission, C‑682/13 P, not published, EU:C:2015:356, paragraph 27).
42 It is also clear from settled case-law that the interest in bringing proceedings must be vested and present, may not concern a future and hypothetical situation (judgment of 27 March 2019, Canadian Solar Emea and Others v Council, C‑237/17 P, EU:C:2019:259, paragraph 76 and the case-law cited) and cannot arise from mere hypothetical situations the materialisation of which would still be uncertain at the time when the action was brought (order of 6 April 2017, Proforec v Commission, C‑176/16 P, not published, EU:C:2017:290, paragraph 35).
43 Lastly, it is clear from settled case-law that the interest in bringing proceedings must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible and continue until the final decision, failing which there will be no need to adjudicate (judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 57 and the case-law cited).
44 The Commission’s plea of inadmissibility based on the fact that there is no interest in bringing proceedings must be examined in the light of those principles.
45 In the first place, it should be borne in mind that the main purpose of the contested regulation, as is apparent from Article 1(1) thereof, is to invite the customs authorities to take appropriate steps to register imports of products concerned by the anti-dumping proceeding. In that connection, it imposes obligations only on customs authorities, to the exclusion of importers, of which the applicant is a member. The applicant is therefore wrong to assert that the contested regulation specifically targets importers.
46 In the second place, in so far as concerns the registration procedure established by the contested regulation and any additional administrative burdens which, it is claimed, it imposes on the applicant, the Commission takes the view that the fact that the applicant must declare its imports to customs authorities for registration does not entail any additional burden or disadvantage for it. In that regard, the Commission maintains that imports from the People’s Republic of China must be declared in any event and that registration is effected by the customs authorities. It therefore takes the view that, even if registration imposes an additional administrative burden, any such burden rests with the customs authorities and not the importers, whose obligations remain unchanged.
47 In its observations on the objection of inadmissibility, the applicant confines itself in that regard to arguing that the registration of imports requires importers to follow a special procedure which imposes an additional administrative burden on and generates more work for them.
48 It should be observed that the applicant’s statements remain vague and general and are not supplemented by any concrete evidence setting out the conduct of that special procedure, the practical steps which it involves and the nature of the alleged additional administrative burden which it imposes on importers. In particular, the applicant has failed to explain how its administrative obligations were altered following the adoption of the contested regulation and the introduction of the registration procedure. Furthermore, the applicant has not been able to adduce evidence capable of substantiating its claims.
49 In any event, it should be observed that it is in no way apparent from its operative part that the contested regulation and the registration measure which it introduces impose any additional administrative burden on the applicant.
50 In the third place, as regards, more specifically, the additional costs or expenses which the registration procedure allegedly imposed on the applicant, the Commission denies that such additional costs or penalties were imposed on imports subject to registration.
51 In that connection, in its observations on the objection of inadmissibility, the applicant merely claims that, in the context of registration, the national customs authorities may require the presentation of a guarantee for imports, before any actual measure of the European Union, or that the customs authorities often tend to secure a guarantee or increase the amounts requested, without providing further details or evidence in support of its claims.
52 It is clear that the applicant’s assertions and the evidence which it has produced – in particular the press articles relating to the anti-dumping proceeding in question and the statement drawn up by a representative of the applicant – fail to establish that the applicant’s imports which were subject to registration pursuant to the contested regulation were in fact subject to additional costs or financial charges.
53 Furthermore, it is not apparent from any of the provisions of the contested regulation that the latter entails, in itself, an increase in the amounts payable by importers. The contested regulation does not in fact require that financial guarantees be secured in respect of registered imports. As the Commission rightly states, the basic regulation requires a guarantee where provisional duties are imposed. Article 7(3) of the basic regulation provides that provisional duties are to be covered by a guarantee and that the release for free circulation of the products concerned in the European Union is to be subject to the provision of such a guarantee. It is on this basis that, in the present case, Article 1(4) of the provisional regulation provides that the release for free circulation in the European Union of the product referred to in paragraph 1 above is to be subject to the provision of a security deposit equivalent to the amount of the provisional duty. That regulation is not, however, the subject-matter of the present action and was adopted after that action was brought.
54 Consequently, it must be held that, although guarantees were required from the applicant at the registration stage – which the applicant has failed to establish – those guarantees constituted at most a measure which the customs authorities freely chose to use within the limits of their discretion, without that being imposed on them pursuant to the contested regulation.
55 In the fourth place, the applicant claims to have suffered disruption on the market for aluminium extrusions as a result of the contested regulation, as well as a loss of customers.
56 In that connection, the applicant claims that the contested regulation has had devastating effects on the market on which it is active and caused panic among EU importers. It also puts forward the argument that, following the adoption of the contested regulation, it has lost customers who, expecting the imposition of definitive duties collected retroactively, stopped buying from the applicant. It thus suffered commercial damage.
57 The Commission takes the view that the elements on which the applicant relies have not been proved.
58 It must be held, first of all, that the applicant’s statements relating to the loss of customers which it suffered remain vague and general and are not supported by evidence capable of establishing the existence of the alleged commercial damage.
59 It should also be observed that the applicant has failed to adduce any further concrete evidence capable of establishing a causal link between the damage allegedly suffered and the registration measure introduced by the contested regulation. Thus there is nothing in the information before the Court which makes it possible to attribute that damage, among several possible causes, to the contested regulation.
60 In that connection, it is not apparent from the information before the Court that the loss of customers suffered by the applicant and the resulting commercial damage – assuming these were established – could be attributed, on the one hand, to factors other than developments in the international economic climate, significantly affected by the COVID-19 pandemic, to which the applicant itself refers, and, on the other hand, to the applicant’s particular position, in particular its geographical location in Lombardy (Italy) and its heavy reliance on imports from the People’s Republic of China. These cannot therefore constitute consequences produced by the contested regulation, which would be brought to an end by its annulment.
61 In the fifth place, with regard to the risk of having retroactively to pay the anti-dumping duties to which the contested regulation exposed it and on which the applicant relies in order to establish its interest in bringing proceedings, it should be observed that, although that risk existed at the stage of the adoption of the contested regulation and the bringing of the present action, the materialisation of that risk then remained uncertain. That interest in bringing proceedings therefore remained purely hypothetical and contingent on a subsequent decision by the Commission to introduce definitive duties and levy them retroactively.
62 Without there being any need to rule on the relevance of the risk of having retroactively to pay definitive anti-dumping duties in order to establish the applicant’s interest in bringing proceedings, it must be held in any event that that risk is no longer present, since the definitive regulation stated, in Article 3 thereof, that the definitive duties which it introduced would not be collected retroactively. In that definitive regulation, the Commission in fact considered that the criteria laid down for the retroactive levying of definitive duties had ultimately not been satisfied. In so far as it ultimately did not materialise, the risk of having retroactively to pay definitive duties cannot therefore justify the applicant’s interest in bringing proceedings.
63 Moreover, the applicant submits that, if the Court annuls the contested regulation, it will escape the retroactive application of anti-dumping duties and that it therefore has a clear interest in avoiding such application, since annulment of the contested regulation is a means of achieving it. In that regard, any stage of the anti-dumping proceeding, from the initiation of the investigation onwards, could thus be challenged on the sole ground that it would expose the applicant to the risk that definitive duties might ultimately be imposed on it. Such an interest relied on by the applicant cannot justify bringing the present action in so far as it would run counter to the objective pursued by the formality of registration, as defined in the case-law cited in paragraph 31 above.
64 In the light of all the foregoing considerations, it must be found that any annulment of the contested regulation would not, in itself, be capable of having legal consequences for the applicant and that the action could not, by its outcome, procure an advantage for it.
65 That finding cannot be called into question by the applicant’s argument that the annulment which it seeks in the present action is a prerequisite for bringing a possible action for compensation against the Commission.
66 In that regard, the Court has held that, in principle, a party retains its interest in continuing an action for annulment where that action may constitute the basis of an action for compensation (judgment of 7 November 2018, BPC Lux 2 and Others v Commission, C‑544/17 P, EU:C:2018:880, paragraph 42; see also, to that effect, judgment of 20 June 2013, Cañas v Commission, C‑269/12 P, not published, EU:C:2013:415, paragraph 17).
67 It is also clear from the case-law that the possibility of an action for compensation suffices to justify an interest in bringing proceedings, in so far as that interest is not hypothetical, which is the case, for example, where the party demonstrates that an action for compensation was indeed brought prior to the ruling of the General Court on the action for annulment (see, to that effect, judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 79).
68 In the present case, the applicant merely states, in general and abstract terms, that it intends to seek compensation from the Commission in respect of the damage suffered as a result of the registration of imports imposed by the Commission with the contested regulation and reimbursement of the additional expenses that it had to bear for that reason. It has failed to adduce evidence that an action for compensation has actually been brought against the Commission in respect of the damage which the applicant claims to have suffered as a result of the adoption of the contested regulation, or that any steps have been taken with a view to bringing such an action.
69 Accordingly, the applicant’s intention to bring an action for compensation against the Commission subsequent to the present action remains hypothetical. Such an intention cannot in itself justify the applicant’s interest in bringing proceedings in the context of the present action for annulment, without rendering the requirement of an interest in bringing proceedings meaningless by accepting that the mere abstract possibility of bringing an action for compensation established by law is sufficient to establish such an interest.
70 In the light of all the foregoing, it must be found that the applicant has no interest in bringing proceedings in the present case, the Commission’s second plea of inadmissibility must be upheld and the present action dismissed as inadmissible, without it being necessary to rule on the other two pleas of inadmissibility alleging that there is no challengeable act and that the applicant has no standing to bring proceedings.
Costs
71 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if these have been applied for in the successful party’s pleadings.
72 Since the applicant has been unsuccessful, it must be ordered to pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. Airoldi Metalli SpA shall pay the costs.
Luxembourg, 28 September 2021.