ORDER OF THE PRESIDENT OF THE SECOND CHAMBER OF THE COURT OF FIRST INSTANCE
16 February 2009 (*)
(Intervention – Confidentiality)
In Case T‑192/08,
Transnational Company ‘Kazchrome’ AO, established in Actobe (Kazakhstan),
ENRC Marketing AG, established in Kloten (Switzerland),
represented by L. Ruessmann and A. Willems, lawyers,
applicants,
v
Council of the European Union, represented by J.-P. Hix, acting as Agent,
defendant,
supported by
Commission of the European Communities, represented by H. van Vliet and K. Talabér-Ritz, acting as Agents,
intervener,
ACTION for annulment in part of Council Regulation (EC) No 172/2008 of 25 February 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ferro-silicon originating in the People’s Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia (OJ 2008 L 55, p. 6),
THE PRESIDENT OF THE SECOND CHAMBER OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES
makes the following
Order
Procedure
1 By application lodged at the Court Registry on 21 May 2008, the applicants brought an action for the annulment of Council Regulation (EC) No 172/2008 of 25 February 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ferro-silicon originating in the People’s Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia (OJ 2008 L 55, p. 6; ‘the contested regulation’), in so far as that regulation applies to them.
2 By document lodged at the Court Registry on 1 September 2008, Euroalliages, an international non-profit-making association representing European Union producers of ferro-alloys and other electrometallurgical products, applied for leave to intervene in the present case in support of the form of order sought by the Council.
3 The application for leave to intervene was served on the parties in accordance with Article 116(1) of the Rules of Procedure of the Court. The Council and the applicants submitted their written observations on the application for leave to intervene by documents lodged at the Court Registry on 20 and 28 October 2008 respectively. The applicants raised objections to that application for leave to intervene.
4 By document lodged at the Court Registry on 28 October 2008, the applicants requested that, pursuant to Article 116(2) of the Rules of Procedure, certain confidential matters in the case-file not be communicated to Euroalliages. For the purpose of such communication, the applicants produced a non-confidential version of the relevant pleadings and documents.
The application for leave to intervene
Arguments of the applicant for leave to intervene and of the parties
5 In support of its application, Euroalliages submits, first, that the complaint that it lodged with the Commission, on 16 October 2006, on behalf of its members, initiated the anti-dumping proceeding which led to the adoption of the contested regulation. Second, it points out that both itself and its members were actively involved in the investigation which preceded the adoption of that regulation. Third, Euroalliages submits that it represents the majority of European producers active in the sector concerned, that is to say 23 companies that account for 95% of the ferro-alloy production in the European Union, and that one of the objects laid down in its statutes is to protect its members’ interests. Fourth, Euroalliages submits that the result of the action for annulment of the contested regulation will be of direct concern to its members and the Community ferro‑silicon industry as a whole, since that regulation was adopted on the basis of a finding that the Community industry had suffered material injury as a result of the dumped imports from Kazakhstan. If the action for annulment succeeded, the anti‑dumping duties imposed on the applicants’ imports of ferro-silicon from Kazakhstan would be annulled. Fifth, Euroalliages argues that it should be granted leave to intervene, since its expertise with regard to the product concerned and the European market may be of assistance to the Court in the conduct of the present case.
6 The applicants submit, first, that the reference, in the application for leave to intervene, to the action for damages brought by the applicants against Euroalliages in the Belgian courts, is irrelevant. Second, as regards Euroalliages’ assertion that it represents 23 companies that themselves account for approximately 95% of the ferro-alloy production in the European Union, the applicants submit, first, that what matters in the present case is not the share of the total Community ferro‑alloy production represented by Euroalliages, but the share of the Community ferro‑silicon market held by its members. Second, Euroalliages’ assertion, in its application for leave to intervene, that Ferropem, Ferroatlantica, Huta Laziska, OFZ and Vargön Alloys AB are Community ferro-silicon producers, should be rejected since it is not based on any evidence, as Vargön Alloys AB was no longer a member of Euroalliages or producing ferro-silicon at the time the application for leave to intervene was lodged. Third, the applicants dispute Euroalliages’ assertion that its application for leave to intervene should be granted on the ground that its expertise with regard to the product concerned and the European market may be of assistance to the Court in the conduct of the present case.
7 The Council submits that Euroalliages may be granted leave to intervene.
Findings of the President
8 First of all, it must be noted that the application for leave to intervene was made in accordance with Article 115 of the Rules of Procedure of the Court. In particular, since the notice in the Official Journal of the European Union, required under Article 24(6) of the Rules of Procedure, was published on 2 August 2008, the application for leave to intervene was made within the period laid down by Article 115(1) of those rules.
9 Second, as regards the objections raised by the applicants as to the merits of the application for leave to intervene, it must be recalled, first of all, that pursuant to Article 40 of the Statute of the Court of Justice, applicable to proceedings before the Court of First Instance by virtue of the first subparagraph of Article 53 thereof, any person establishing an interest in the result of a case, save in cases between Member States, between institutions of the Communities, or between Member States and institutions of the Communities, may intervene in a case before the Court of First Instance.
10 According to case-law, a representative association whose object is to protect its members, which seeks leave to intervene in a case raising questions of principle liable to affect those members, establishes such an interest. That broad interpretation of the right to intervene is intended to facilitate assessment of the context of cases while avoiding multiple individual interventions which would compromise the effectiveness and proper course of the procedure (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 v British Coal and Commission [1997] ECR I‑3491, paragraph 66, and Case C‑151/98 P Pharos v Commission [1998] ECR I‑5441, paragraph 6, and of the President of the Fourth Chamber of the Court of First Instance of 9 March 2005 in Case T‑201/04 Microsoft v Commission, not published in the ECR, paragraph 31).
11 More specifically, an association may be granted leave to intervene in a case if it represents an appreciable number of operators active in the sector concerned, its objects include that of protecting its members’ interests, the case may raise questions of principle affecting the functioning of the sector concerned and the interests of its members may therefore be affected to an appreciable extent by the judgment to be given (order in Case T‑253/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission [2007] ECR II‑479, paragraph 15 and the case-law cited).
12 Lastly, in the field of anti-dumping, it should be noted that it cannot seriously be denied that an association which has brought the complaint on the basis of which the regulation imposing definitive anti-dumping duties was adopted and has actively participated in the administrative procedure leading to the adoption of that regulation has an interest in the result of the case (see, to that effect, the order of 5 May 2008 in Case T‑274/07 Zheijiang Harmonic Hardware Products v Council, not published in the ECR, paragraph 11).
13 In the present case, the President finds, first, that Euroalliages represents an appreciable number of operators active in the sector concerned. Indeed, it is not denied that the members of Euroalliages represented more than 90% of the Community ferro-silicon production at the time the complaint was lodged with the Commission, as is apparent from recital 2 in the preamble to Commission Regulation (EC) No 994/2007 of 28 August 2007 imposing a provisional anti‑dumping duty on imports of ferro-silicon originating in the People’s Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia (OJ 2007 L 223, p. 1). Although the applicants claim, in their observations on the application for leave to intervene, that Vargön Alloys AB was no longer a member of Euroalliages at the time the application for leave to intervene was lodged, they have not, however, shown that, apart from that company, the members of Euroalliages have withdrawn from that association to such an extent that Euroalliages may no longer be regarded as representing an appreciable number of operators active in the sector concerned.
14 Second, it is apparent from Euroalliages’ statutes that one of the objects of that association is the protection of its members’ interests.
15 Third, since the contested regulation imposes definitive anti-dumping duties further to the finding that there has been dumping which caused injury to Community industry, which was determined on the basis of data provided by the members of Euroalliages in particular, as is apparent from recitals 11 and 78 of Regulation No 994/2007, the inevitable conclusion is that those members may be affected to an appreciable extent by the judgment to be given.
16 Fourth, it is not denied that Euroalliages brought the complaint on the basis of which the contested regulation was adopted, and actively participated in the administrative procedure leading to the adoption of that regulation.
17 It must therefore be concluded that Euroalliages has an interest in the result of the case.
18 That conclusion cannot by called into question by the applicants’ remaining arguments. First, as regards the argument that the reference to the action for damages against Euroalliages in the Belgian courts is irrelevant, it is clear that Euroalliages refers to that action in recalling the procedural background to the present case, and does not base any of its arguments as to the merits of its application for leave to intervene on that action. Second, as regards the argument that Euroalliages’ expertise with regard to ferro-silicon is not a legal basis for granting leave to intervene, it was only after Euroalliages had showed that it has an interest in the result of the case that it argued that its expertise with regard to the product concerned could be useful to the Court.
19 In the light of the foregoing, the applicants’ objections must be dismissed and the application for leave to intervene granted.
The application for confidential treatment
20 At this juncture, only a non-confidential version of the procedural documents served and to be served on the parties will be transmitted to Euroalliages. A decision as to the merits of the application for confidentiality will be taken at a later stage.
Costs
21 Article 87(1) of the Rules of Procedure provides that a decision as to costs is to be given in the final judgment or in the order which closes the proceedings.
22 At this stage in the proceedings, costs must therefore be reserved.
On those grounds,
THE PRESIDENT OF THE SECOND CHAMBER OF THE COURT OF FIRST INSTANCE
hereby orders:
1. Euroalliages is granted leave to intervene in Case T‑192/08 in support of the form of order sought by the Council.
2. The Registrar shall transmit to Euroalliages the non‑confidential version of each procedural document served on the parties.
3. A period shall be fixed for Euroalliages to submit observations on the application for confidential treatment. The decision on the merits of that application is reserved.
4. A period shall be fixed for Euroalliages 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 on the merits of the application for confidential treatment.
5. Costs are reserved.
Luxembourg, 16 February 2009.