ORDER OF THE PRESIDENT OF THE SIXTH CHAMBER OF THE COURT OF FIRST INSTANCE
17 November 2008 (*)
(Removal from the register)
In Case T-383/03,
Hynix Semiconductor Inc., established in Kyoungi-Do (Korea), represented by J.-F. Bellis, lawyer,
applicant,
supported by
Korean Exchange Bank, established in Seoul (Korea), represented by J. Bourgeois, lawyer
and by
Citibank NA Seoul Branch (Korea), established in Seoul (Korea), represented by F. Petillion, lawyer,
interveners,
v
Council of the European Union, represented by M. Bishop, acting as Agent, assisted by G. Berrisch, lawyer,
defendant,
supported by,
Micron Technology Italia Srl, established in Avezzano AQ (Italy) and Micron Europe Ltd, established in Crowthorne (United Kingdom), represented by B. Connor, Solicitor and D. Luff, lawyer,
Commission of the European Communities, represented by T. Scharf and K. Talabér-Ritz, acting as Agents,
and by
Infineon Technologies AG, established in Munich (Germany), represented by M. Schütte, lawyer,
interveners,
APPLICATION for annulment of Council Regulation (EC) No 1480/2003 of 11 August 2003 imposing a definitive countervailing duty and collecting definitively the provisional duty imposed on imports of certain electronic microcircuits known as DRAMs (dynamic random access memories) originating in the Republic of Korea.
1 By application lodged at the Registry of the Court of First Instance on 14 November 2003, Hynix Semiconductor Inc. (hereinafter ‘Hynix’), a company governed by Korean law established in Kyoungi-Do (Korea), brought an action for the annulment of Council Regulation (EC) No 1480/2003 of 11 August 2003 imposing a definitive countervailing duty and collecting definitively the provisional duty imposed on imports of certain electronic microcircuits known as DRAMs (dynamic random access memories) originating in the Republic of Korea (OJ 2003, L 212, p. 1; hereinafter ‘the contested regulation’). Hynix claims that the contested regulation should be annulled in its entirety or, in the alternative, partially.
2 By letters received at the Registry of the Court of First Instance on 28 January, 16 February and 11 March 2004 respectively, Micron Europe Ltd, a company governed by English law established in Berkshire (United Kingdom), and Micron Technology Italia, Srl, a company governed by Italian law established in Avezzano (Italy) (hereinafter together referred to as ‘Micron’), the Commission, and Infineon Technologies AG (hereinafter ‘Infineon’), a company governed by German law established in Munich (Germany), applied for leave to intervene in the case in support of the form of order sought by the Council.
3 By letters received at the Court Registry on 11 March 2004, Citibank, NA Seoul Branch (Korea) (hereinafter ‘Citibank’), a company governed by Korean law established in Seoul (Korea), and Korean Exchange Bank (hereinafter ‘KEB’), a company governed by Korean law established in Seoul, applied for leave to intervene in the case in support of the form of order sought by Hynix.
4 By orders of 14 July 2004 the President of the Fourth Chamber granted the applications of the Commission, Infineon and Micron to intervene.
5 By order of 29 October 2004, the President of the Fourth Chamber granted the applications of Citybank and KEB.
6 By letter lodged at the Registry of the Court of First Instance on 2 September 2008, the applicant informed the Court in accordance with Article 99 of the Rules of Procedure of the Court of First Instance that it wished to discontinue proceedings and requested, pursuant to Article 87(5) of the Rules of Procedure, that the defendant be ordered to pay its costs and those incurred by the interveners or, in the alternative, that each party be ordered to pay its own costs.
7 The applicant states that the discontinuance is justified by the Council’s conduct. First, the applicant submits that the Council has recognised that Regulation (EC) No 1480/2003 was unlawful by adopting Council Regulation (EC) No 548/2006 of 10 April 2006 (OJ 2006 L 103, p. 1), amending the contested regulation with the view to implement the findings of the Report adopted on 3 August 2005 by the Dispute Settlement Body of the World Trade Organisation (WTO) in case WT/DS299/R and reducing the definitive countervailing duty to 32,9%. This amendment would result from the recognition by the Dispute Settlement Body of the WTO that there has been a violation of the agreement on subsidies and countervailing measures of the WTO. The said amendment would confirm, according to the applicant, that its application is well-founded. Second, by adopting Council Regulation (EC) No 320/2008 of 7 April 2008, repealing the countervailing duty imposed on imports of certain electronic microcircuits known as DRAMs (Dynamic Random Access Memories) originating in the Republic of Korea and terminating the proceeding (OJ 2008 L 96, p. 1) the Council has allegedly deprived the application of its object. The applicant’s alternative claim that each party should bear its own costs is based on the same arguments, as well as on the complexity of the case.
8 By letter lodged at the Registry of the Court on 7 October 2008, the defendant informed the Court that it had no objection to the discontinuance and requested that, in accordance with Article 87(5) of the Rules of Procedure, the applicant be ordered to pay the costs.
9 The Council states, first, that the adoption of Regulation (EC) No 584/2006 does neither constitute evidence nor admission by the Council that the contested regulation is unlawful. Had the Council considered that the contested regulation was contrary to Community law, it would have provided for the retroactive application of regulation No 584/2006. However, the amendment of the contested regulation, through Regulation (EC) No 584/2006 only applied prospectively. In addition, it follows from the judgement of the Court of Justice in Case C-351/04 Ikea WholesalevCommissioners of Customs & Excise, [2007] ECR I- 7723, that in circumstances such as those in the present case, it is not for the Court to review the legality of a community measure in the light of WTO rules. Second, the Council replies that the fact that the countervailing duties were repealed does not mean that these proceedings would no longer serve any purpose. Had the applicant succeeded in its application for annulment, it would have been entitled to a reimbursement of the duties collected prior to this date, of which only part have been reimbursed. The Council moreover considers that the alternative claim put forward by the applicant is also unfounded, for the aforementioned reasons and given that the complexity of the case in itself cannot justify a departure from the rule according to which the party who discontinues should bear the costs.
10 By letter lodged at the Registry of the Court on 7 October 2008, the intervener, Infineon, informed the Court that it had no objection to the discontinuance and requested that, in accordance with Article 87(5) of the Rules of Procedure, the applicant be ordered to pay the costs including the costs of the intervener, Infineon. The arguments of Infineon are, in substance, identical to those of the Council.
11 By letter lodged at the Registry of the Court on 7 October 2008, the intervener, the Commission, informed the Court that it had no objection to the discontinuance, and requested that, in accordance with Article 87(5) of the Rules of Procedure, the applicant be ordered to pay the costs incurred by the defendant and by the interveners supporting it. The arguments of the Commission are, in substance, identical to those of the Council.
12 The first subparagraph of Article 87(5) of the Rules of Procedure provides that a party who discontinues or withdraws from proceedings shall be ordered to pay the costs if they have been applied for in the observations of the other party on the discontinuance. However, upon application by the party who discontinues or withdraws form pleadings, the costs are to be borne by the other party if this appears justified by the conduct of that party.
13 In the present case, the applicant has requested the Court to order the Council to pay the costs, on the basis of Article 87(5), first subparagraph, second sentence, of the Rules of Procedure.
14 It is appropriate to conclude that neither the amendment of the contested regulation through Regulation (EC) No 584/2006, nor the repeal of the contested measure as from 31 December 2007 through Regulation (EC) No 320/2008 is capable of demonstrating a conduct on the part of the Council that would justify that it shall bear the costs. Unlike a judgment annulling an act, by which the act is eliminated retroactively from the legal order and is deemed never to have existed, those two regulations have produced an ex nunc effect (Cases T‑481/93 and T‑484/93 Exporteurs in Levende Varkens e.a v Commission, [1995] ECR-II-2941, paragraphs 46 to 48; Case T‑228/02 Organisation des Modjahedines du peuple d’Iran v Conseil, [2006] ECR II-4665, paragraph 35). It follows that the application has not become devoid of purpose.
15 The alternative claim of the applicant that each party should bear its own costs has to be rejected, for the same reasons and also because the complexity of the case is not in itself a reason to justify, pursuant to Article 87(5), first indent, of the Rules of Procedure, a departure from the rule according to which the party who discontinues should bear the costs, if they have been applied for in the observations of the other party on the discontinuance.
16 Consequently, it is appropriate to order, according to Article 87(5), first indent, first sentence, of the Rules of Procedure, that the applicant bears its own costs, as well as those incurred by the Council and the interveners who have intervened in support of the form of order sought by the applicant and who have applied for costs in their observations on the discontinuance of the proceedings.
17 The case will therefore be removed from the register and the applicant ordered to pay the costs incurred by the defendant and by the interveners, Infineon and the Commission.
On those grounds,
THE PRESIDENT OF THE SIXTH CHAMBER OF THE COURT OF FIRST INSTANCE
hereby orders:
1. Case T-383/03 is removed from the register of the Court of First Instance.
2. The applicant shall bear the costs incurred by the defendant and by the interveners, Infineon AG and the Commission.
3. The interveners, Korean Exhange Bank, Citibank NA Seould Branch (Korea), Micron Technology Italia Srl and Micron Europe Ltd shall bear their own costs.
Luxembourg, 17 November 2008.