Case T‑507/13

SolarWorld AG and Others

v

European Commission

(Actions for annulment — Dumping — Imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from China — Acceptance of an undertaking offered in connection with the anti- dumping proceeding — Community industry — No direct concern — Inadmissibility)

Summary — Order of the General Court (Fifth Chamber), 14 January 2015

1.      Judicial proceedings — Admissibility of actions — Judged by reference to the situation when the application was lodged — New factor — Adaptation of initial forms of order sought and pleas in law — Possibility subject to the admissibility of the initial application

(Rules of Procedure of the General Court, Art. 48(2))

2.      Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Cumulative conditions

(Art. 263, fourth para., TFEU)

3.      Actions for annulment — Natural or legal persons — Measures of direct and individual concern to them — Whether directly concerned — Criteria — Commission decision accepting an undertaking offered by an exporter in the context of an anti-dumping proceeding — Action by EU producers — No direct concern — Inadmissibility

(Art. 263, fourth para., TFEU; Council Regulation No 1225/2009, Art. 8(1) and (6); Commission Decision 2013/423)

4.      Common commercial policy — Protection against dumping — Anti-dumping proceeding — Right of access to non-confidential documents relating to the proceedings — Obligation on parties offering a price undertaking to provide a non-confidential version thereof — Communication subsequent to the decision accepting the undertaking — Lawfulness — No infringement of the procedural rights of the parties concerned by the investigation

(Council Regulation No 1225/2009, Art. 8(4))

5.      Actions for annulment — Natural or legal persons — Meaning of ‘regulatory act’ in Article 263, fourth paragraph, TFEU — Any act of general scope except for legislative measures — Commission decision accepting an undertaking offered by an exporter in the context of an anti-dumping proceeding — Not included

(Art. 263, fourth para., TFEU; Council Regulation No 1225/2009; Commission Decision 2013/423)

1.      See the text of the decision.

(see paras 33, 65)

2.      See the text of the decision.

(see paras 35, 36)

3.      In an action brought by natural or legal persons under the second and third situations referred to in the fourth paragraph of Article 263 TFEU, in order to satisfy the requirement of direct concern, two cumulative criteria must be met, namely, first, that the act the annulment of which the applicants seek must directly affect their legal situation and, second, that that act must leave no discretion to the addressees of that measure, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules without the application of other intermediate rules. Those conditions cannot be called into question by the right of individuals to effective judicial protection.

A Commission decision, adopted pursuant to Article 8(1) of Regulation No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community, accepting an undertaking offered by an exporter of products subject to anti-dumping duties by virtue of Commission and Council regulations establishing provisional and definitive anti-dumping duties respectively, does not produce legal effects of such a kind as directly to affect the legal situation of EU producers. It follows from the system established under Regulation No 1225/2009 that it is not because of the decision accepting undertakings that the imports covered by those undertakings are exempt from anti-dumping duties. The exemption stems from the provisions adopted, either by the Commission in the amended provisional anti-dumping Regulation, or by the Council in the definitive anti-dumping Regulation, in order to implement the undertakings in question.

Whilst it is true that, in its second sentence, Article 8(1) of the Regulation No 1225/2009 provides that, where the Commission accepts such an offer, and as long as the undertakings in question are in force, the provisional or definitive duties imposed are not to apply to imports of the product concerned manufactured by the companies referred to in the Commission decision accepting the undertakings, the said provision nevertheless requires, for the period during which an undertaking is in force, the exemption from anti-dumping duties which stems from the provisions which are adopted, either by the Commission in the amended provisional anti-dumping Regulation, or by the Council in the definitive anti-dumping Regulation.

(see paras 40, 48, 51, 52, 54)

4.      See the text of the decision.

(see para. 56)

5.      A decision accepting an undertaking offered by an exporter of products subject to provisional anti-dumping duties does not constitute a regulatory act within the meaning of the third situation referred to in the fourth paragraph of Article 263 TFEU. In so far as a ‘regulatory act’ must be understood as covering all acts of general application apart from legislative acts, the said decision, even if it does not constitute a legislative act, is not of general application in that it does not apply to objectively determined situations and does not produce legal effects with respect to categories of persons envisaged in general and in the abstract.

(see para. 64)