ORDER OF THE PRESIDENT OF THE FIFTH CHAMBER OF THE GENERAL COURT
28 November 2014 (*)
(Intervention – Request for confidentiality)
In Case T‑142/14,
SolarWorld AG, established in Bonn (Germany),
Brandoni solare SpA, established in Castelfidardo (Italy),
Solaria Energia y Medio Ambiente SA, established in Madrid (Spain),
represented by L. Ruessmann, lawyer, and J. Beck, Solicitor,
applicants,
v
Council of the European Union, represented by B. Driessen, acting as Agent,
defendant,
supported by
European Commission, represented by J.-F. Brakeland, T. Maxian Rusche and A. Stobiecka-Kuik, acting as Agents,
intervener,
APPLICATION for annulment of Article 2 of Council Implementing Regulation (EU) No 1239/2013 of 2 December 2013 imposing a definitive countervailing duty on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China (OJ 2013 L 325, p. 66)
THE PRESIDENT OF THE FIFTH CHAMBER OF THE GENERAL COURT
makes the following
Order
Background to the dispute
1 By notice published in the Official Journal of the European Union on 6 September 2012 (OJ 2012 C 269, p. 5), the Commission announced the opening of an anti-dumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in [China].
2 By notice published in the Official Journal of the European Union on 8 November 2012 (OJ 2012 C 340, p. 13), the Commission announced the opening of an anti-subsidy proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in [China].
3 On 4 June 2013, the Commission adopted Regulation (EU) No 513/2013 imposing a provisional anti-dumping duty on imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from [China] and amending Regulation (EU) No 182/2013 making these imports originating in or consigned from [China] subject to registration (OJ 2013 L 152, p. 5; ‘the provisional anti-dumping regulation’).
4 By Decision 2013/423/EU of 2 August 2013, the Commission accepted, in the context of the anti-dumping proceeding, the undertaking offered by a group of Chinese exporting producers which had worked together and are listed in the annex to that decision, in collaboration with the China Chamber of Commerce for Import and Export of Machinery and Electronic Products (OJ 2013 L 209, p. 26) (‘the CCCME’).
5 Commission Regulation (EU) No 748/2013 of 2 August 2013 (OJ 2013 L 209, p. 1) amended the provisional anti-dumping regulation to take into account Decision 2013/423. In essence, provided that certain conditions are satisfied, Article 6 of that regulation, as amended, provides that imports declared for release into free circulation for products currently falling within CN code ex 3818 00 10 (TARIC codes 3818 00 10 11 and 3818 00 10 19) and CN code ex 8541 40 90 (TARIC codes 8541 40 90 21, 8541 40 90 29, 8541 40 90 31 and 8541 40 90 39) which are invoiced by companies from which undertakings were accepted by the Commission and whose names are listed in the Annex to Decision 2013/423 are to be exempt from the provisional anti-dumping duty imposed by Article 1.
6 It follows from recital 4 in the preamble to Commission Implementing Decision 2013/707/EU of 4 December 2013 confirming the acceptance of an undertaking offered in connection with the anti-dumping and anti-subsidy proceedings concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from [China] for the period of application of definitive measures (OJ 2013 L 325, p. 214) that, following the adoption of the provisional anti-dumping measures, the Commission continued the investigation into dumping, injury and European Union interest, as well as the parallel anti-subsidy proceedings. Wafers have been excluded from the scope of both investigations, and hence from the scope of the definitive measures.
7 It is apparent from recitals 7 to 10 and from Article 1 of that decision that, subsequent to the disclosure of the definitive anti-dumping and anti-subsidy findings, the exporting producers, in colloboration with the CCCME, submitted a notification to amend their initial undertaking offer. The Commission accepted the terms of the undertaking in order to eliminate also any injurious effects of the subsidised imports. Furthermore, a number of additional exporting producers requested to participate in that undertaking. The CCCME and the exporting producers requested, in addition, a review of the undertaking to take account of the exclusion of wafers from the scope of the investigation.
8 The definitive findings of the investigation are set out in Council Implementing Regulation (EU) No 1238/2013 of 2 December 2013 imposing a definitive anti-dumping duty on imports, into the European Union, of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from [China] (OJ 2013 L 325, p. 1).
9 By Council Implementing Regulation (EU) No 1239/2013 of 2 December 2013, the Council also imposed a definitive countervailing duty on crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from China (OJ 2013 L 325, p. 66; ‘the contested regulation’ or ‘the definitive regulation’). That regulation brought the anti-subsidy proceeding to a close.
10 Article 1 of that regulation introduces a specific, definitive countervailing duty for exporting producers of between 3.5% and 11.5%.
11 In essence, provided that certain conditions are satisfied, Article 2 of the definitive regulation, as amended, provides that imports declared for release into free circulation for products currently falling within CN code ex 8541 40 90 (TARIC codes 8541 40 90 21, 8541 40 90 29, 8541 40 90 31 and 8541 40 90 39) which are invoiced by companies from which undertakings were accepted by the Commission and whose names are listed in the Annex to Decision 2013/707 are to be exempt from the anti-subsidy duty imposed by Article 1, namely, the countervailing duty.
Proceedings before the General Court
12 By application lodged at the General Court Registry on 28 February 2014, the applicants brought the present action.
13 By document lodged at the General Court Registry on 15 April 2014, the Commission applied for leave to intervene in support of the form of order sought by the Council. By order of 4 June 2014, the President of the Fifth Chamber of the General Court granted that application.
14 By document lodged at the General Court Registry on 20 June 2014, the CCCME applied to intervene in support of the form of order sought by the Council.
15 In their observations lodged at the General Court Registry on 23 July and 5 August 2014 respectively, neither the Council nor the Commission raised any objections with regard to that application.
16 However, objections to that application for leave to intervene were raised by the applicants in their observations lodged at the General Court Registry on 8 August 2014. By letter of the same date, the applicants also requested confidential treatment and provided a non-confidential version of the application, defence and reply.
Law
17 The application to intervene was made in accordance with Article 115(1) of the Rules of Procedure of the General Court.
18 Under the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 thereof, any person establishing an interest in the result of a case, other than a dispute between Member States, between institutions of the European Union or between Member States and institutions of the European Union, may intervene in that case.
19 It is settled case-law that the concept of an interest in the result of a case, within the meaning of that provision, must be defined in the light of the precise subject-matter of the dispute and be understood as meaning a direct, existing interest in the ruling on the forms of order sought and not as an interest in relation to the pleas in law put forward. The expression ‘result’ 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 measure and whether his interest in the result of the case is established (see order of 25 February 2003 in BASF v Commission, T‑15/02, ECR, EU:T:2003:38, paragraph 26 and the case-law cited).
20 It is settled case-law that representative associations, whose object is to protect their members in cases raising questions of principle liable to affect those members, are allowed to intervene. More particularly, an association may be granted leave to intervene in a case if it represents an appreciable number of companies 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 (see order of 28 November 2005 in Microsoft v Commission, T‑201/04, EU:T:2005:427, paragraph 31 and the case-law cited).
21 Furthermore, it is for the applicant seeking leave to intervene (‘the applicant in intervention’) to adduce the evidence necessary to prove that it complies with the conditions set out in the preceeding paragraphs (see, to that effect, order of 17 October 2011 in Gesamtverband der Deutschen Textil‑ und Modeindustrie and Others v Council and Others, C‑3/11 P(I), EU:C:2011:665, paragraph 31).
22 In order to demonstrate its direct and specific interest in the result of the present dispute, the CCCME presents itself, at the outset, as an association that groups and represents, inter alia, the common interests of its members, Chinese producers of solar panels, in international trade. As the representative of the interests of the major Chinese solar panel producers, the CCCME claims that it was an interested party in the investigation leading to the adoption of the contested regulation, in which it actively participated. In that context, the CCCME states that it made numerous submissions and was heard on several occasions by the Commission. In that regard, it was also mentioned on several occasions in the contested regulation.
23 Furthermore, the CCCME claims to have played a key role in the negotiations leading to the acceptance of the undertaking at issue in the present dispute. In particular, it argues that it offered an undertaking that the Commission accepted. Moreover, under the terms of the contested regulation, the CCCME is the body responsible for the issuance of the export undertaking certificates.
24 Finally, the CCCME argues that its members, which produce solar panels, would be directly affected if Article 2 of the contested regulation were to be annulled.
25 In that regard, at the outset, the applicants correctly argue that, as it is not a Chinese exporting producer of the product concerned, benefitting from the undertaking at issue, the CCCME is not itself directly affected by Article 2 of the contested regulation. That conclusion is supported by Article 2 of its statutes, appended to the application for leave to intervene, according to which the CCCME is a non-profit body. Furthermore, as the CCCME itself states, it is involved in the anti-subsidy proceeding in order to represent the interests of its members, not its own interests.
26 Furthermore, the mere fact of being involved in the administrative proceedings in support of the companies that it represents does not, of itself, confer on it an autonomous individual interest to intervene in the present case (see, to that effect, order of 14 December 2010 in Cixi Jiangnan Chemical Fiber and Others v Council, T‑537/08, EU:T:2010:514, paragraphs 5, 6 and 16 to 18). In the absence of specific implications resulting from the anti-subsidy proceeding at issue for its members or for the exporting producers that it represents, the CCCME had, in the applicants’ view, no autonomous reason to wish to intervene in the present dispute.
27 It is, therefore, having regard to the conditions governing the granting to representative associations of leave to intervene that the present application must be examined.
28 First, the applicants rightly point out that, in the context of demonstrating its representativeness, the applicant in intervention has failed to provide the Court with a list of its members or representation mandates from exporting producers which are not members of the CCCME. However, the CCCME provided a non-confidential version of the undertaking at issue, which includes in Annex X thereto a list of 171 Chinese exporting producers which subscribed to that undertaking. Taking into consideration the fact that the CCCME actively participated in the various stages of the investigation leading to the adoption of the contested regulation, that it carried out negotiations leading to the acceptance, by the institutions of the European Union, of that undertaking, and that it played a key role in those negotiations, which also imposed on it responsibility for the issuance of the export undertaking certificates (Annex 3 to the contested regulation), it cannot reasonably be denied that the CCCME does indeed represent a significant number of Chinese exporting producers of the product concerned.
29 That conclusion is corroborated by the applicants themselves, which state in paragraph 33 of their application that ‘[i]n the present case, however, the Commission negotiated a collective arrangement with the Chinese government and the CCCME, the latter in turn acting for over one hundred Chinese exporting producers that held a [European Union] market share of well more than 50% during the investigation period’.
30 Accordingly, the CCCME must be regarded as an association which represents a significant number of undertakings operating in the sector concerned.
31 Secondly, the applicants argue that no document has been submitted by the CCCME to demonstrate that the defence of its members before courts or tribunals constitutes one of its objectives. Nevertheless, even if that objective is not explicitly mentioned, it is sufficiently covered by Articles 3 and 6(3) and (4) of its statutes. According to those provisions, the objective of the CCCME is to represent its members, to protect their interests, to organise them to respond to foreign investigations into anti-dumping and anti-subsidy matters concerning Chinese exports, and to protect fair competition.
32 Thirdly, the CCCME rightly claims that annulment of Article 2 of the contested regulation would have a negative impact for the exporting producers of the product concerned which it represents. The legality of that provision is therefore without any doubt a question of principle affecting the functioning of the sector concerned.
33 As the application to intervene must be granted under the conditions set out in Article 116(2) to (4) of the Rules of Procedure, the transmission to the CCCME of the procedural documents served on the parties must, at the present stage, be limited to the non-confidential version produced by the applicants. A decision on the merits of the request for confidential treatment shall, if necessary, be taken at a later stage in the light of any observations which may be submitted on that issue.
Costs
34 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 closing the proceedings. Since the present order does not close the proceedings, all the costs must be reserved.
On those grounds,
THE PRESIDENT OF THE FIFTH CHAMBER OF THE GENERAL COURT
hereby orders:
1. The China Chamber of Commerce for Import and Export of Machinery and Electronic Products is granted leave to intervene in Case T‑142/14 in support of the form of order sought by the Council of the European Union.
2. The Registrar shall send to the intervener a non‑confidential version of every procedural document served on the parties.
3. A period shall be prescribed within which the intervener may submit any observations which it may have on the request for confidential treatment. The decision on the merits of that request is reserved.
4. The costs are reserved.
Luxembourg, 28 November 2014.