ORDER OF THE GENERAL COURT (Fourth Chamber)
9 April 2013 (*)
(Dumping – Imports of certain fatty alcohols and their blends originating in India, Indonesia and Malaysia – Definitive anti‑dumping duty – Adoption of a new regulation – No longer any interest in bringing proceedings – No need to adjudicate)
In Case T‑28/12,
PT Ecogreen Oleochemicals, established in Kabil-Batam (Indonesia),
Ecogreen Oleochemials (Singapore) Pte Ltd, established in Singapore (Singapore),
Ecogreen Oleochemicals GmbH, established in Dessau-Roβlau (Germany),
represented by F. Graafsma and J. Cornelis, lawyers,
applicants,
v
Council of the European Union, represented by J.-P. Hix, acting as Agent, and by G. Berrisch and N. Chesaites, lawyers,
defendant,
APPLICATION for the annulment in part of Council Implementing Regulation (EU) No 1138/2011 of 8 November 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain fatty alcohols and their blends originating in India, Indonesia and Malaysia (OJ 2011 L 293, p. 1), in so far as it imposes an anti‑dumping duty on PT Ecogreen Oleochemicals,
THE GENERAL COURT (Fourth Chamber),
composed of I. Pelikánová, President, K. Jürimäe and M. van der Woude (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Facts giving rise to the dispute
1 On 8 November 2011, the Council of the European Union adopted Implementing Regulation (EU) No 1138/2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain fatty alcohols and their blends originating in India, Indonesia and Malaysia (OJ 2011 L 293, p. 1) (‘the contested regulation’).
2 Pursuant to Article 1(2) of the contested regulation, a definitive anti‑dumping duty of 80.34% per tonne of the product concerned was imposed on the Indonesian company PT Ecogreen Oleochemicals (‘PTEO’).
3 In addition, Article 2 of the contested regulation ordered the definitive collection of amounts secured by way of the provisional anti-dumping duty pursuant to Commission Regulation (EU) No 446/2011 of 10 May 2011 imposing a provisional anti-dumping duty on imports of certain fatty alcohols and their blends originating in India, Indonesia and Malaysia (OJ 2011 L 122, p. 47).
Procedure
4 By application lodged on 21 January 2012, the applicants, PTEO, Ecogreen Oleochemicals (Singapore) Pte Ltd and Ecogreen Oleochemicals GmbH, brought an action seeking the annulment in part of the contested regulation and an order for the Council to pay the costs.
5 The applicants submitted, inter alia, that the Council had committed a manifest error of assessment in that it did not treat PTEO and Ecogreen Oleochemicals (Singapore) as a single economic entity. If it had done so, however, the Council would have been precluded by case‑law from inferring, when calculating the export price, that ‘commissions’ had been paid for the purposes of Article 2(10)(i) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51, corrigendum OJ 2010 L 7, p. 22) (‘the basic regulation’).
6 By separate document, sent together with the application, the applicants also requested that the Court adjudicate under the expedited procedure provided for in Article 76a of its Rules of Procedure. That request was rejected by decision of the Fourth Chamber of the Court of 29 February 2012.
7 By letter of 1 March 2012, by way of a measure of organisation of procedure laid down in Article 64 of the Rules of Procedure, the Court requested the parties to identify the consequences to be drawn for the present case from the judgment of the Court of Justice of 16 February 2012 in Joined Cases C‑191/09 P and C‑200/09 P Council and Commission v Interpipe Niko Tube and Interpipe NTRP, not yet published in the ECR (‘the judgment in Interpipe’). The applicants responded to that question by document lodged at the Court Registry on 19 March 2012. The Council sought permission from the Court to be able to respond to that question in its statement of defence.
8 On 1 March 2012, the Council requested the Court to stay the proceedings for six months on the basis of Article 77(c) of the Rules of Procedure, pending a solution between the parties following the judgment in Interpipe. By order of 29 March 2012 the President of the Fourth Chamber of the Court ordered that the proceedings be stayed until 29 September 2012. At the Council’s request, the stay of proceedings was extended until 31 December 2012 by order of 18 October 2012 of the President of the Fourth Chamber of the Court.
9 By document lodged at the Court Registry on 20 April 2012, Sasol Olefins & Surfactants GmbH and Sasol Germany GmbH sought leave to intervene in the present case in support of the form of order sought by the Council. The parties in the main proceedings were invited to submit their observations on that application by 19 April 2013, at the latest.
10 By document lodged at the Court Registry on 6 February 2013, the Council applied for a declaration that there is no need to adjudicate in the present case, for the purposes of Article 113 of the Rules of Procedure.
11 In its application, the Council mentioned the adoption of Implementing Regulation (EU) No 1241/2012 of 11 December 2012 amending [the contested regulation] (OJ 2012 L 352, p. 1) (‘the new regulation’) and its publication in the Official Journal of the European Union on 21 December 2012.
12 The Council stated that Article 1 of the new regulation amended the definitive anti‑dumping duties imposed on PTEO to zero. Article 2 of the new regulation also provided that any amounts of duty paid pursuant to the contested regulation that exceeded those established by the new regulation were to be repaid or remitted.
13 In those circumstances, the Council considered that it was no longer necessary to rule on the applicants’ action. The Council also stated that it had agreed with the applicants that the Council would bear the costs relating to the proceedings.
14 By document lodged at the Court Registry on 20 February 2013, the applicants did not raise any objections to a declaration that it was no longer necessary to rule in the case and requested the Court to adopt an order to that effect and to order the Council to pay the costs.
Law
15 Under Article 113 of the Rules of Procedure, the Court may at any time, of its own motion, after hearing the parties, decide whether there exists any absolute bar to proceeding with an action or declare that the action has become devoid of purpose and that there is no need to adjudicate on it.
16 In the present case, the Court considers itself sufficiently informed by the documents in the file to give a decision without taking further steps in the proceedings.
17 According to settled case‑law, the interest in bringing proceedings must continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be likely, if successful, to procure an advantage for the party bringing it (Case C‑362/05 P Wunenburger v Commission [2007] ECR I‑4333, paragraph 42, and the order of 7 December 2011 in Case T‑255/11 Fellah v Council, not published in the ECR, paragraph 12).
18 In the present case, the Council set out, in recitals 3 to 5 to the new regulation, the arguments raised by the applicants in the present action and recognised that, on the basis of the judgment in Interpipe, it was appropriate, as requested by the applicants, to recalculate the dumping margin applicable to PTEO, without making an adjustment pursuant to Article 2(10)(i) of the basic regulation. The Council stated, in recital 6 to the new regulation, that, on the basis of the new calculation, the dumping margin established for PTEO was less than 2% and that it could thus be considered de minimis in accordance with Article 9(3) of the basic regulation. On that basis, the Council terminated the investigation in respect of PTEO by imposing an anti‑dumping duty at a rate of zero on that company in Article 1 of the new regulation.
19 The Council stated, in recital 33 to the new regulation, that the rates amended by that regulation should apply retroactively from the date of entry into force of the contested regulation, including to any imports subject to provisional duties between 12 May and 11 November 2011 (see paragraph 3 above). Thus, the anti‑dumping duties imposed by the contested regulation in excess of the duties laid down by the new regulation should be repaid or remitted. Such repayment or remittance was ordered in Article 2 of the new regulation.
20 Consequently, the adoption of the new regulation leads to the result desired by the applicants and satisfies their claims in full, since PTEO is no longer subject to the anti‑dumping duties imposed on it and it has a right to repayment or remittance of duty already paid in compliance with the contested regulation.
21 Moreover, in the present case, the applicants stated that they did not oppose a declaration that there was no longer any need to adjudicate and requested the Court to adopt an order to that effect (see paragraph 14 above). Accordingly, the applicants no longer have an interest in seeking the annulment of the contested regulation.
22 In the light of all of the above, there is no longer any need to adjudicate on this action.
23 There is also no longer any need to adjudicate on the application for leave to intervene lodged by Sasol Olefins & Surfactants and Sasol Germany.
Costs
24 Under Article 87(6) of the Rules of Procedure, where a case does not proceed to judgment, the costs are to be in the discretion of the Court.
25 In the particular circumstances of the case and in the light of the agreement between the parties to that effect (see paragraph 13 above), the General Court considers it appropriate to order the Council to bear its own costs in addition to those incurred by the applicants.
26 Sasol Olefins & Surfactants and Sasol Germany are to bear their own costs.
On those grounds,
THE GENERAL COURT (Fourth Chamber)
hereby orders:
1. There is no longer any need to adjudicate on the action.
2. There is no longer any need to adjudicate on the application for leave to intervene of Sasol Olefins & Surfactants GmbH and Sasol Germany GmbH.
3. The Council of the European Union shall bear, in addition to its own costs, those incurred by PT Ecogreen Oleochemicals, Ecogreen Oleochemials (Singapore) Pte Ltd and Ecogreen Oleochemicals GmbH.
4. Sasol Olefins & Surfactants and Sasol Germany shall bear their own costs.
Luxembourg, 9 April 2013.