ORDER OF THE GENERAL COURT (Seventh Chamber)
14 November 2019 (*)
(Dumping — Imports of bioethanol originating in the United States — Definitive anti-dumping duty — Repeal of the contested act — No longer any legal interest in bringing proceedings — No need to adjudicate)
In Case T‑276/13 RENV,
Growth Energy, established in Washington, DC (United States),
Renewable Fuels Association, established in Washington,
represented by P. Vander Schueren and M. Peristeraki, lawyers,
applicants,
v
Council of the European Union, represented by S. Boelaert, acting as Agent, and by N. Tuominen, lawyer,
defendant,
supported by
European Commission, represented by T. Maxian Rusche and M. França, acting as Agents,
and by
ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol, represented by O. Prost and A. Massot, lawyers,
interveners,
APPLICATION pursuant to Article 263 TFEU for the annulment in part of Council Implementing Regulation (EU) No 157/2013 of 18 February 2013 imposing a definitive anti-dumping duty on imports of bioethanol originating in the United States of America (OJ 2013 L 49, p. 10), in so far as it concerns the applicants and their members,
THE GENERAL COURT (Seventh Chamber),
composed, at the time of the deliberation, of V. Tomljenović (Rapporteur), President, A. Marcoulli and A. Kornezov, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute and procedure
1 The applicants, Growth Energy and Renewable Fuels Association, are associations representing US bioethanol producers as well as, in the case of Growth Energy, other organisations active in the biofuels sector, and, in the case of Renewable Fuels Association, supporters of ethanol in the United States. The US producers of bioethanol represented by the applicants include Marquis Energy LLC, Patriot Renewable Fuels LLC, Plymouth Energy Company LLC, POET LLC and Platinum Ethanol LLC. The US undertakings Murex and CHS are bioethanol traders/blenders exporting that product to the European Union. Murex is an ‘associate member’ of Growth Energy and CHS is an ‘associate member’ of Renewable Fuels Association.
2 By application lodged at the Court Registry on 15 May 2013, the applicants brought the present action seeking the annulment in part of Council Implementing Regulation (EU) No 157/2013 of 18 February 2013 imposing a definitive anti-dumping duty on imports of bioethanol originating in the United States of America (OJ 2013 L 49, p. 10) (‘the contested regulation’), in so far as that regulation concerns the applicants and their members. All the US producers referred to in paragraph 1 above had been sampled by the European Commission for the purposes of selecting exporting producers from the United States covered by the investigation opened in the course of the procedure which led to the adoption of that regulation. The two exporters Murex and CHS had submitted sampling forms.
3 By its judgment of 9 June 2016, Growth Energy and Renewable Fuels Association v Council (T‑276/13, ‘the initial judgment’, EU:T:2016:340), the General Court annulled the contested regulation in so far as it concerned Patriot Renewable Fuels, Plymouth Energy Company, POET and Platinum Ethanol and dismissed the action as to the remainder.
4 On 20 August 2016, the Council of the European Union lodged an appeal against the initial judgment. On 7 November 2016, the applicants lodged a cross-appeal.
5 By its judgment of 28 February 2019, Council v Growth Energy and Renewable Fuels Association (C‑465/16 P, ‘the appeal judgment’, EU:C:2019:155), the Court of Justice, which reserved the costs, held as follows:
‘1. [The initial judgment is set aside], except inasmuch as it dismissed the action brought by Growth Energy and Renewable Fuels Association in their own right as interested parties in the proceedings[.]
2. [The action for annulment of Growth Energy and Renewable Fuels Association is dismissed] as inadmissible in so far as they brought that action in their capacity as representatives of the interests of sampled US bioethanol producers [.]
3. [The case is referred] back to the General Court of the European Union for it to rule on the action for annulment of Growth Energy and Renewable Fuels Association in so far as they brought that action in their capacity as representatives of the interests of the traders/blenders Murex and CHS’.
6 After the referral back to the General Court made in the appeal judgment, the case was assigned to the Seventh Chamber of the General Court.
7 By letter from the Court Registry of 13 March 2019, the parties were requested to submit, pursuant to Article 217(1) of the Rules of Procedure of the General Court, their observations on the conclusions to be drawn from the appeal judgment for the outcome of the proceedings.
8 On 29 April, 8 May and 16 May 2019 respectively, the applicants, the Commission and the Council lodged their observations. In their document of 29 April 2019, the applicants stated that they would not lodge further substantive written observations on the conclusions to be drawn from the appeal judgment for the outcome of the proceedings.
9 On 14 May 2019, the Commission adopted Implementing Regulation (EU) 2019/765 repealing the anti-dumping duty on imports of bioethanol originating in the United States of America and terminating the proceedings in respect of such imports, following an expiry review pursuant to Article 11(2) of the Regulation (EU) 2016/1036 of the European Parliament and of the Council (OJ 2019 L 126, p. 4). Regulation 2019/765 entered into force on 16 May 2019. In its document of 16 May 2019 (see paragraph 8 above), the Council submitted, inter alia, that, in view of the adoption of Implementing Regulation 2019/765, the applicants no longer had a legal interest in bringing proceedings.
10 On 11 June 2019, the parties were given leave to submit supplementary statements of written observations, by 23 July 2019 at the latest, pursuant to Article 217(3) of the Rules of Procedure. The Council and the Commission filed their supplementary statements on 5 and 18 July 2019, respectively. The applicants and the intervener, ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol, did not file supplementary statements.
11 On 25 July 2019, the Court Registry notified the parties that the written part of the procedure was closed.
Forms of order sought
12 The applicants did not set out any specific form of order sought, at the stage of the procedure initiated following the referral back to the General Court by the Court of Justice. It must be concluded, however, that they maintain the form of order sought referred to in paragraph 35 of the initial judgment, in so far as that form of order has not been rejected by the Court. It must, therefore, be concluded that the applicants claim that the Court should:
– annul the contested regulation in so far as it affects them in their capacity as representatives of the interests of the traders/blenders Murex and CHS;
– order the Council to pay the costs.
13 The Council states that it wishes to maintain the form of order sought which it presented in its appeal and rejoinder. It must, therefore, be concluded that the Council contends that the Court should dismiss the action. In addition, the Council contends that the applicants should bear the costs of the appeal and of the referral of the case back to the General Court.
14 The Commission states that it wishes to maintain the form of order sought which it presented in its statement in intervention and in the rejoinder. The Commission therefore contends that the Court should:
– dismiss the application as inadmissible;
– in the alternative, dismiss the application as unfounded.
15 In addition, it contends that the applicants should bear the costs of the appeal and of the referral of the case back to the General Court.
16 Lastly, ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol, also did not put forward any form of order sought other than that referred to in its statement in intervention. It must, therefore, be concluded that that association contends that the Court should:
– dismiss the pleas relied upon by the applicants;
– order the applicants to pay the costs.
Law
17 Under Article 131(1) of the Rules of Procedure, if the General Court declares that the action has become devoid of purpose and that there is no longer any need to adjudicate on it, it may at any time, of its own motion, on a proposal from the Judge-Rapporteur and after hearing the parties, decide to rule by reasoned order.
18 In the present case, the Court considers that it has sufficient information from the material in the file and has decided to give a decision without taking further steps in the proceedings.
19 According to settled case-law of the Courts of the European Union, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it (see judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 55 and the case-law cited).
20 An applicant’s interest in bringing proceedings must be vested and current. It may not concern a future and hypothetical situation (see judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraph 56 and the case-law cited).
21 That interest must, in the light of the purpose of the action, exist at the stage of lodging the action, failing which the action will be inadmissible, and continue until the final decision, failing which there will be no need to adjudicate. The interest in bringing proceedings is an essential and fundamental prerequisite for any legal proceedings (see judgment of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraphs 57 and 58 and the case-law cited).
22 If the subject matter of the action for annulment, namely the contested act, disappears in the course of proceedings, the Court cannot rule on the substance, since, in principle, such a decision on its part cannot procure an advantage for the applicant (see, to that effect, judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 43).
23 The disappearance of the subject matter of the dispute may arise in certain circumstances, in particular from a repeal of the contested act in the course of the proceedings (see, to that effect, orders of 28 March 2006, Mediocurso v Commission, T‑451/04, not published, EU:T:2006:95, paragraph 26, and of 6 July 2011, Petroci v Council, T‑160/11, not published, EU:T:2011:334, paragraph 15).
24 In various circumstances, the Courts of the European Union have recognised that an applicant’s interest in bringing proceedings did not necessarily disappear by reason of the fact that the act challenged by the applicant ceased to have effect in the course of the proceedings (judgment of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraph 62).
25 It has, therefore, been held that an applicant may retain an interest in claiming the annulment of a decision either in order to be restored to its original position or in order to induce the author of the contested act to make suitable amendments in the future, and thereby avoid the risk that the unlawfulness alleged in respect of that act will be repeated (see judgment of 15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740, paragraph 50 and the case-law cited). However, in the latter case, that interest in bringing proceedings can exist only if the alleged unlawfulness is liable to recur in the future independently of the circumstances of the case which gave rise to the action brought by the applicant (judgment of 7 June 2007, Wunenburger v Commission, C‑362/05 P, EU:C:2007:322, paragraph 52).
26 The question whether an applicant retains its interest in bringing proceedings must be assessed in the light of the specific circumstances, taking account, in particular, of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been sustained (judgment of 28 May 2013, Abdulrahim v Council and Commission, C‑239/12 P, EU:C:2013:331, paragraph 65).
27 Moreover, the applicant must justify in a relevant manner its continuing interest in bringing proceedings (see judgment of 15 December 2016, Gul Ahmed Textile Mills v Council, T‑199/04 RENV, not published, EU:T:2016:740, paragraph 49 and the case-law cited). It is, therefore, for the applicant to substantiate its continuing interest in bringing proceedings with specific and verifiable elements to demonstrate that continuing interest, where appropriate, with the support of evidence (see, to that effect, judgment of 4 June 2015, Andechser Molkerei Scheitz v Commission, C‑682/13 P, not published, EU:C:2015:356, paragraph 27).
28 Lastly, it should be borne in mind that indeed as opposed to a situation where an act is withdrawn or replaced, which results in it disappearing completely — with effect ex tunc — from the EU legal order, the legal effect of a repealed act expires, unless otherwise specified, on the date of its repeal (see, to that effect, order of 12 January 2011, Terezakis v Commission, T‑411/09, EU:T:2011:4, paragraph 16 and the case-law cited). However, the fact that the repealed act produced legal effects in the past does not relieve the applicant of its obligation to demonstrate specifically its continuing interest in bringing proceedings in the context of the action for annulment. The fact that an act has been repealed in no way alters the burden of proof on the applicant relating to the existence of legal consequences and damage, as referred to in the case-law cited in paragraph 26 above. Furthermore, in so far as it considers that it has sustained damage as a result of legal effects that no longer exist, the applicant may plead the unlawfulness of the repealed act, inter alia, in the context of an action for damages. The interest in bringing proceedings for such an action is not precluded by the fact that the act which allegedly adversely affects the applicant was repealed before the date on which that action was brought.
29 In the present case, in the document of 16 May 2019 which the Council lodged pursuant to Article 217(1) of the Rules of Procedure (see paragraph 8 above), that institution stated that, by Article 1 of Implementing Regulation 2019/765, the anti-dumping duty on imports of bioethanol originating in the United States imposed by the contested regulation had been repealed with effect from 15 May 2019. In so doing, the Council pleaded, expressly and unambiguously, the disappearance of the applicants’ interest in bringing proceedings as a result of the repeal of the contested regulation. In addition, the Council made observations on the applicants’ standing to bring proceedings and observations on the substance. Furthermore, it should be noted that, in its observations lodged on 8 May 2019 during the first exchange of pleadings, the Commission also stated that it was in the process of initiating a procedure for the repeal of the contested regulation.
30 In the light of those factors, the General Court gave the applicants the opportunity to express their views on the observations set out in the Commission’s and the Council’s documents of 8 and 16 May 2019, respectively, including on the arguments relating to the repeal of the contested regulation, in the context of an exchange of supplementary statements of written observations in accordance with Article 217(3) of the Rules of Procedure.
31 Thus, the applicants were informed of the repeal of the contested regulation, at least from the time of notification of the Council’s document of 16 May 2019, and of the Council’s arguments submitted on the same day to the effect that they no longer had a legal interest in bringing proceedings as a result of the disappearance of the subject matter of the dispute.
32 It follows that the applicants were heard to the requisite legal standard as regards the issues related to the existence and loss of their interest in bringing proceedings, for the purposes of Article 131(1) of the Rules of Procedure.
33 The applicants chose not to submit observations in the context of the exchange of supplementary statements. They did not set out any form of order sought other than that which they had set out at the stage of the proceedings before the case was referred back to the General Court. Nor have they changed that form of order sought.
34 It is true that, in its observations lodged on 8 May 2019 during the first exchange of pleadings, the Commission noted that Murex and CHS had made exports of bioethanol originating in the United States worldwide and therefore also to the European Union. To that effect, the Commission submitted copies of two documents in which the companies Murex and CHS had declared in December 2011 that they did not intend to claim ‘individual margins’. The documents in question are those attached as Annexes A1 and A2 to the Commission’s pleading of 8 May 2019.
35 However, those documents are not sufficient to substantiate the continuation of the applicants’ interest in bringing proceedings from the point of view of an action for damages. Those documents do not make it possible to identify precisely the damage sustained by Murex and CHS as a result of any unlawfulness of the contested regulation, or to identify the legal consequences for those companies of any unlawfulness of the contested regulation.
36 Nor have the applicants set out any evidence to substantiate that they still have an interest in bringing proceedings in terms of there being a risk of a repetition of an alleged unlawfulness of the contested regulation, which would exist independently of the circumstances which gave rise to the present action.
37 It follows that the applicants have not demonstrated the existence of specific elements which would support the conclusion that they have retained an interest in seeking the annulment of the repealed anti-dumping duty, within the meaning of the case-law referred to in paragraphs 24 to 26 above.
38 In those circumstances, it must be concluded that they no longer have an interest in bringing proceedings against the contested regulation and that there is no longer any need to adjudicate on the action.
Costs
39 In the initial judgment, the parties were ordered to bear their own costs. In the appeal judgment, the Court of Justice reserved the costs. It is, therefore, for the General Court to decide, in the present order, on all the costs relating to the various proceedings, in accordance with Article 219 of the Rules of Procedure.
40 Where a case does not proceed to judgment, Article 137 of the Rules of Procedure provides that the costs are to be in the discretion of the General Court.
41 In the present case, it must be held that the main parties have been partially unsuccessful in their claims. In those circumstances and in the light of all the circumstances of the case, the applicants and the Council must be ordered to bear their own costs relating to the various proceedings which took place before the General Court and before the Court of Justice.
42 In accordance with Article 138(1) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. It is therefore appropriate to decide that the Commission must bear its own costs.
43 Lastly, according to Article 138(3) of the Rules of Procedure, the General Court may order an intervener other than those referred to in Article 138(1) and (2) of those rules to bear its own costs. In the light of the circumstances of the case, it must be held that ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol is to bear its own costs.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
1. There is no longer any need to adjudicate on the action.
2. Growth Energy and Renewable Fuels Association, the Council of the European Union, the European Commission and ePure, de Europese Producenten Unie van Hernieuwbare Ethanol shall bear their own costs.
Luxembourg, 14 November 2019.