Case T‑141/14

SolarWorld AG and Others

v

Council of the European Union

(Actions for annulment — Dumping — Imports of crystalline silicon photovoltaic modules and key components (cells) originating in or consigned from China — Definitive anti-dumping duties — Exemption of imports covered by an accepted undertaking — Non-severability — Inadmissibility)

Summary — Order of the General Court (Fifth Chamber), 1 February 2016

1.      Actions for annulment — Subject-matter — Partial annulment — Condition — Severability of the contested provisions — Objective criterion

(Art. 263 TFEU)

2.      Actions for annulment — Subject-matter — Partial annulment — Condition — Severability of the contested provisions — Provision in a Council regulation exempting from anti-dumping duties certain imports forming the subject-matter of an undertaking accepted by the Commission — Annulment entailing a modification of the substance of the regulation — Requirement not met

(Art. 263 TFEU; Council Regulation No 1238/2013, Arts 1(2), and 3)

1.      Partial annulment of a Union act is possible only if the elements of which the annulment is sought may be severed from the remainder of the act. That requirement of severability is not satisfied where the partial annulment of a measure would have the effect of altering its substance. In that regard, the question whether partial annulment would alter the substance of the contested measure is an objective criterion, and not a subjective criterion linked to the political intention of the authority which adopted that measure.

In addition, the review of whether the measures of which annulment is sought are severable requires consideration of the scope of those measures in order to be able to assess whether their annulment would alter the spirit and substance of the act in which they are contained.

(see paras 48-51)

2.      An annulment action against Article 3 of Regulation No 1238/2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China must be dismissed as inadmissible. Annulment of that article, which exempts imports of the product concerned originating from Chinese exporting producers consenting to price undertakings from anti-dumping duties, would alter the effects of Regulation No 1238/2013, since the said imports would no longer be exempt, within certain annual limits, from the anti-dumping duties laid down in Article 1(2) of that regulation. If the action for the annulment of the contested measure were upheld, it follows from a consideration of the scope of that measure that the very spirit and substance of the definitive regulation would be altered.

In that regard, Article 3 of Regulation No 1238/2013 exempts, within a certain quantitative limit, certain named economic operators from anti-dumping duties, subject to compliance with the conditions that it lays down. Consequently, by removing the applicable exemption of duties within that quantitative limit, the annulment of the contested measure would confer a greater scope on the anti-dumping duties than that which arises from the application of Regulation No 1238/2013 as adopted by the Council, for, in such a case, those duties would apply to all imports of the product at issue consigned from China whereas, under the definitive regulation taken as a whole, those duties would apply only to imports consigned by Chinese exporting producers that had not consented to the undertaking accepted by the Commission. Such a result would alter the substance of the act in which the measure of which the annulment is sought is contained.

Moreover, the question as to whether all of the articles of the Regulation No 1238/2013 are capable of applying without Article 3 has no bearing on the assessment of the scope of the alteration to that regulation which would be brought about by the annulment of the contested measure, an assessment which constitutes the criterion for determining whether the substance of the legal act containing the measure for which annulment is applied has been altered. The same is true of the fact that the articles of the Regulation No 1238/2013 may have been unambiguous, thereby rendering it unnecessary to interpret them by reference to the recitals in the preamble, by reason of the fact that nothing in the said regulation makes the imposition of anti-dumping duties dependent on Article 3 and of the fact that the undertaking offered was not a condition to which the adoption of Regulation No 1238/2013 was subject.

(see paras 54, 55, 60, 61)