ORDER OF THE GENERAL COURT (Fifth Chamber)
14 April 2015 (*)
(Dumping — Imports of crystalline silicon photovoltaic modules and key components (cells and wafers) originating in or consigned from China — Provisional anti-dumping duty)
In Case T‑393/13,
SolarWorld AG, established in Bonn (Germany),
Solsonica SpA, established in Cittaducale (Italy),
represented by L. Ruessmann, lawyer, and J. Beck, Solicitor,
applicants,
v
European Commission, represented by J.-F. Brakeland and T. Maxian Rusche, acting as Agents,
defendant,
APPLICATION, first, for annulment of Commission Regulation (EU) No 513/2013 of 4 June 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 the People’s Republic of China and amending Regulation (EU) No 182/2013 making these imports originating in or consigned from the People’s Republic of China subject to registration (OJ 2013 L 152, p. 5), to the extent that the rate of those provisional duties was established, for the period from 6 June to 5 August 2013, at a level which eliminates neither the dumping nor the loss, secondly, an application for an order that the customs authorities of the Member States be directed to apply the full anti-dumping duty rates as from 6 June 2013 and, thirdly, an action in non-contractual liability against the Commission for the loss that the applicants allegedly suffered due to the application, for the period from 6 June to 5 August 2013, of the provisional anti-dumping duties at the rate introduced by Regulation No 513/2013,
THE GENERAL COURT (Fifth Chamber),
composed of A. Dittrich, President, J. Schwarcz (Rapporteur) and V. Tomljenović, Judges,
Registrar: E. Coulon,
makes the following
Order
Factual and legal background
1 The applicants, SolarWorld AG and Solsonica SpA, are European producers of crystalline silicon photovoltaic modules and key components and are supporters of EU ProSun, a European association of producers for the products concerned. On 25 July 2012, EU ProSun lodged an anti-dumping complaint against imports of those products from China.
2 On 6 September 2012, the Commission published in the Official Journal of the European Union a Notice of initiation of anti-dumping proceedings concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in the People’s Republic of China (OJ 2012 C 269, p. 5).
3 The applicants cooperated in those proceedings.
4 On 8 November 2012, the Commission published in the Official Journal of the European Union a Notice of initiation of anti-subsidy proceedings concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in the People’s Republic of China (OJ 2012 C 340, p. 13).
5 On 4 June 2013, the Commission adopted Commission 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 the People’s Republic of China and amending Regulation (EU) No 182/2013 making these imports originating in or consigned from the People’s Republic of China subject to registration (OJ 2013 L 152, p. 5) (‘the provisional regulation’ or ‘the contested regulation’).
6 Article 1(2)(i) of the contested regulation imposed a provisional anti-dumping duty of 11.8%, applicable to imports of the products concerned into the European Union and to all Chinese exporting producers, for a period of two months, until 5 August 2013.
7 Article 1(2)(ii) of that regulation imposed a specific provisional anti-dumping duty for imports of the same products on the exporting producers concerned ranging from 37.3% to 67.9% applicable from 6 August to 5 December 2013.
8 Under Article 1(3) of the contested regulation, the release for free circulation in the EU of the products concerned was made subject to the provision of a security equivalent to the amount of the provisional duty.
9 After the present action was brought, the Commission adopted Decision 2013/423/EU of 2 August 2013 accepting an undertaking offered in connection with the anti-dumping proceedings concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the People’s Republic of China (OJ 2013 L 209, p. 26) by a group of cooperating Chinese exporting producers, which are listed in the annex to that decision, together with the China Chamber of Commerce for Import and Export of Machinery and Electronic Products (‘the CCCME’).
10 On 2 August 2013, the Commission adopted Regulation (EU) No 748/2013 amending Regulation (EU) No 513/2013 (OJ 2013 L 209, p. 1), to take account of Decision 2013/423. In essence, provided that certain conditions are fulfilled, 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), 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 are accepted by the Commission and whose names are listed in the Annex to Decision 2013/423, are exempted from the anti-dumping duty introduced by Article 1 of the regulation.
11 According to 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 the People’s Republic of China for the period of application of definitive measures (OJ 2013 L 325, p. 214), that, following the adoption of provisional anti-dumping measures, the Commission continued the investigation of dumping, injury and European Union interest, as well as the parallel anti-subsidy proceeding. Wafers were excluded from the scope of both investigations, and hence from the scope of the definitive measures.
12 According to recitals 7 to 10 and Article 1 of Decision 2013/707, subsequent to the definitive disclosure of the anti-dumping and anti-subsidy findings, the exporting producers together with the CCCME submitted a notification to amend their initial undertaking offer. The Commission accepted the terms of the undertaking with a view also to eliminating any injurious effects of subsidised imports. In addition, a certain number of additional exporting producers requested to participate in the undertaking. Furthermore, the CCCME and the exporting producers requested that the undertaking be revised to take account of the exclusion of wafers from the scope of the investigation.
13 According to recital 5 in the preamble to Decision 2013/707, the anti-dumping investigation confirmed the provisional findings of injurious dumping.
14 The definitive findings of the investigation are contained in Council Implementing Regulation (EU) No 1238/2013 of 2 December 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 (OJ 2013 L 325, p. 1) (‘the definitive regulation’).
15 Article 1 of the definitive regulation imposes a specific anti-dumping duty applicable to the exporting producers ranging from 27.3% to 64.9%.
16 Article 2(1) of the definitive regulation states:
‘The amounts secured by way of the provisional anti-dumping duty pursuant to Regulation … No 513/2013 on imports of wafers (the wafers have a thickness not exceeding 400 micrometres) and modules or panels with a output voltage not exceeding 50 V DC and a power output not exceeding 50 W solely for direct use as battery chargers in systems with the same voltage and power characteristics originating in or consigned from [China] shall be released.’
17 Article 2(2) of the definitive regulation states:
‘The amounts secured by way of the provisional anti-dumping duty pursuant to Regulation … No 513/2013 on imports of crystalline silicon photovoltaic modules or panels and cells of the type used in crystalline silicon photovoltaic modules or panels (the cells have a thickness not exceeding 400 micrometres), currently falling within CN codes ex 8501 31 00, ex 8501 32 00, ex 8501 33 00, ex 8501 34 00, ex 8501 61 20, ex 8501 61 80, ex 8501 62 00, ex 8501 63 00, ex 8501 64 00 et ex 8541 40 90 (TARIC codes 8501 31 00 81, 8501 31 00 89, 8501 32 00 41, 8501 32 00 49, 8501 33 00 61, 8501 33 00 69, 8501 34 00 41, 8501 34 00 49, 8501 61 20 41, 8501 61 20 49, 8501 61 80 41, 8501 61 80 49, 8501 62 00 61, 8501 62 00 69, 8501 63 00 41, 8501 63 00 49, 8501 64 00 41, 8501 64 00 49, 8541 40 90 21, 8541 40 90 29, 8541 40 90 31 and 8541 40 90 39) and originating in or consigned from [China], unless they are in transit in the sense of Article V [of] GATT, shall be definitively collected. The amounts secured in excess of the definitive rate of anti-dumping duties shall be released.’
18 On 2 December 2013, the Council adopted Implementing Regulation (EU) No 1239/2013 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 L 2013 325, p. 66).
Procedure and forms of order sought
19 By application lodged at the Court Registry on 1 August 2013, the applicants brought the present action.
20 By separate document of the same date, the applicants applied for the case to be adjudicated under the expedited procedure.
21 By letter of 14 August 2013, the Commission objected to adjudication under that procedure.
22 The composition of the Chambers of the Court having been altered, the Judge-Rapporteur was assigned to the Fifth Chamber, to which this case has therefore been assigned.
23 By decision of 24 October 2013, the Court (Fifth Chamber) dismissed the application for the case to be decided under the expedited procedure.
24 On 10 October 2014, the parties were requested to submit their observations on the possibility of a decision, based upon Article 113 of the Rules of Procedure of the General Court, that there is no need to adjudicate in the present case following the adoption of the definitive regulation. They were also requested to submit further information on the assessment of the losses allegedly suffered by the applicants. The parties replied within the prescribed period.
25 The applicants claim in essence that the Court should:
– annul Article 1(2) of the contested regulation to the extent that it delays until 6 August 2013 the application of the full provisional anti-dumping duty on imports of crystalline silicon photovoltaic modules, cells and wafers originating in or consigned from China;
– direct the customs authorities of the Member States to apply the anti-dumping duty rates set out in Article 1(2)(ii) of the contested regulation as from 6 June 2013;
– order the Commission to pay damages to the extent that the anti-dumping duty rates set out in Article 1(2)(ii) of the contested regulation have not been applied as from 6 June 2013;
– order the Commission to pay the costs.
26 The Commission contends that the Court should:
– dismiss the action as inadmissible;
– in the alternative, dismiss the action as unfounded;
– order the applicants to pay the costs.
27 In their reply to the measures of organisation of procedure, the applicants claim that the Court should not order that there is no longer any need to adjudicate in the present case and should decide the present matter on its merits.
28 The Commission contends in its reply to the measures of organisation of procedure that the Court should order that there is no need to adjudicate by virtue of Article 113 of the Rules of procedure.
Law
The admissibility of the second head of claim of the applicants seeking an order that the customs authorities of the Member States be directed to apply the anti-dumping duty rates set out in Article 1(2)(ii) of the contested regulation as from 6 June 2013
29 Under Article 111 of the Rules of Procedure, where an action is manifestly inadmissible or manifestly lacking any foundation in law, the Court may give a decision on the action by reasoned order, without taking any further steps in the proceedings (order of 14 October 1999 in Infrisa v Commission, C‑437/98 P, ECR, EU:C:1999:503, paragraph 16).
30 In that regard, it should be stated that, in the context of a review of legality under Article 263 TFEU, the Court has no power to issue directions either to EU institutions or bodies or to Member States (order of 29 November 1993 in Koelman v Commission, T‑56/92, ECR, EU:T:1993:105, paragraph 18).
31 Consequently, the present head of claim is manifestly inadmissible.
The lack of a necessity to adjudicate on the applicant’s first and third heads of claim, seeking the annulment of Article 1(2) of the contested regulation to the extent that it delays the application of the full provisional anti-dumping duty on imports of crystalline silicon photovoltaic modules, cells and wafers originating in or consigned from China until 6 August 2013 and an order that the Commission pay damages caused as a result
32 Under Article 113 of the Rules of Procedure, the General 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.
33 In the present case, the Court considers it has sufficient information from the documents in the file and has decided to adjudicate without taking further steps in the proceedings.
34 According to settled case-law, the interest of an applicant 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. That purpose of the proceedings must continue to exist, like the interest in bringing proceedings, until the final decision, failing which there will be no need to adjudicate; this presupposes that the action must be liable, if successful, to procure an advantage to the party bringing it (see judgment of 28 May 2013 in Abdulrahim v Council and Commission, C‑239/12 P, ECR, EU:C:2013:331, paragraph 61 and the case-law cited).
35 If the applicant’s interest in bringing proceedings disappears in the course of proceedings, a decision of the Court on the merits cannot bring him any benefit (judgment of 7 June 2007 in Wunenburger v Commission, C‑362/05 P, ECR, EU:C:2007:322, paragraph 44).
36 In various circumstances the Court of Justice has acknowledged that an applicant’s interest in bringing proceedings did not necessarily disappear because the act challenged by him ceased to have effect in the course of proceedings. In particular, the Court has thus held that an applicant may retain an interest in claiming the annulment of a decision either in order to be restored to his original position (judgment of 6 March 1979 in Simmenthal v Commission, 92/78, ECR, EU:C:1979:53, paragraph 32) 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. In a case between an undertaking, which had been unlawfully excluded from a tender procedure, and the Commission, the Court of Justice held that even where, because of the circumstances, it proves impossible to fulfil the obligation, owed by the institution whose act has been annulled, to take the necessary measures to comply with the judgment annulling the act, the application for annulment may retain an interest as the basis for possible proceedings for damages (see judgment in Abdulrahim v Council and Commission, cited in paragraph 34 above, EU:C:2013:331, paragraphs 62 to 64 and the case-law cited).
37 It is apparent from that case-law that the maintenance of an applicant’s 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 in Abdulrahim v Council and Commission, cited in paragraph 34 above, EU:C:2013:331, paragraph 65).
38 The applicants claim, first of all, that the present case raises an issue relating to the legality of Article 1(2)(i) of the contested regulation, which imposed provisional anti-dumping duties, for the period from 6 June to 5 August 2013, of 11.8% on all Chinese exporting producers, whereas Article 1(2)(ii) of the contested regulation had imposed specific anti-dumping duties ranging from 37.3% to 67.9% for the period from 6 August to 5 December 2013. Such a phasing in of the provisional anti-dumping duties deviates from the Commission’s usual practice in imposing provisional duties and infringes Article 7(2) 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) (‘the basic regulation’). The present case is therefore of significant importance for the interpretation of Article 7 of the basic regulation.
39 Secondly, the definitive regulation did not concern the issues challenged in the present case, which is why its adoption cannot empty the present action of its purpose. Similarly, a ruling in Case T‑141/14 SolarWorld and Others v Council would not address the legal questions at issue in this case as the pleas in law in those proceedings are different from those in the present case.
40 Finally, the applicant’s claim for damages is dependent on the Court’s decision on the merits in the present case, since Article 1(2)(i) of the provisional regulation gave rise to damages which are unique to that regulation and which were not removed by the definitive regulation.
41 The Commission considers, in essence, that, by imposing the definitive collection of provisional anti-dumping duties on the modules or the panels and the cells at the same level as that provided for by the provisional regulation and by releasing both the excess of the security provided for the modules as well as all of the security provided for the wafers, any legal effect that could have arisen on a provisional basis from the contested regulation has been replaced by the legal effects flowing from the definitive regulation. For example, if the applicants complained of the insufficient level of the provisional anti-dumping duty on wafers, the dispute has become moot in that regard because the definitive regulation has released all securities provided for the payment of the provisional anti-dumping duties on wafers.
42 More importantly still, the legal basis for the determination of the level of the anti-dumping duties on imports of modules or panels and cells is no longer the provisional regulation, but the definitive regulation.
43 By referring to paragraphs 12 to 14 of the judgment of 5 October 1988 in Technointorg v Commission and Council (294/86 and 77/87, ECR, EU:C:1988:470), the Commission concludes, in essence, that there is no need to adjudicate either on the action for annulment or on the action for damages.
44 In that regard, it follows from settled case-law that the adoption of a definitive regulation which imposes the collection of anti-dumping duties which were imposed in the provisional regulation and releases the provisional anti-dumping duties secured or provided in security in excess of the rate definitively imposed, or those which have been secured for products subsequently excluded from the investigation, has, as a consequence, that any legal effect resulting from the provisional regulation can no longer ordinarily be invoked by the applicants, which were, in the circumstances of this case, either importers or exporting producers of the imported product (judgments of 5 October 1998 in Brother v Commission, 56/85, ECR, EU:C:1988:463, paragraph 6; Technointorg v Commission and Council, cited in paragraph 43 above, EU:C:1988:470, paragraph 12; of 11 July 1990 in Neotype Techmashexport v Commission and Council, C‑305/86 and C‑160/87, ECR, EU:C:1990:295, paragraph 13; and of 22 March 2012 in GLS, C‑338/10, ECR, EU:C:2012:158, paragraph 18; orders of 10 July 1996 in Miwon v Commission, T‑208/95, ECR, EU:T:1996:98, paragraph 20; of 30 June 1998 in BSC Footwear Supplies and Others v Commission, T‑73/97, ECR, EU:T:1998:147, paragraph 13; and of 11 January 2013 in Charron Inox and Almet v Commission and Council, T‑445/11 and T‑88/12, EU:T:2013:4, paragraph 30).
45 By confirming and maintaining the effects of the provisional regulation in the measures decided by the definitive regulation, the latter replaced the former (see, to that effect, judgment in Neotype Techmashexport v Commission and Council, cited in paragraph 44 above, EU:C:1990:295, paragraph 14, and order in Charron Inox and Almet v Commission and Council, cited in paragraph 44 above, EU:T:2013:4, paragraph 31).
46 Consequently, the applicants no longer had, in principle, an interest in bringing their application for annulment of the provisional regulation, to such an extent that there was no need to adjudicate on their applications (judgments in Brother v Commission, cited in paragraph 44 above, EU:C:1988:463, paragraph 7; Technointorg v Commission and Council, cited in paragraph 43 above, EU:C:1988:470, paragraph 14; Neotype Techmashexport v Commission and Council, cited in paragraph 44 above, EU:C:1990:295 paragraph 16; orders in Miwon v Commission, cited in paragraph 44 above, EU:T:1996:98, paragraph 37; BSC Footwear Supplies and Others v Commission, cited in paragraph 44 above, EU:T:1998:147, paragraphs 13 and 16; and Charron Inox and Almet v Commission and Council, cited in paragraph 44 above, EU:T:2013:4, paragraph 31).
47 Given that the irregularities of the provisional regulation can be pleaded as a basis for the illegality of the definitive regulation, in so far as those irregularities are maintained in the definitive regulation, those elements, even the allegedly injurious legal effects, of the provisional regulation which are maintained by the definitive regulation can therefore be contested in an action brought against the definitive regulation (judgment in Technointorg v Commission and Council, cited in paragraph 43 above, EU:C:1988:470, paragraph 13; Opinion of Advocate General Slynn in Technointorg v Commission and Council, 294/86 and 77/87, ECR, EU:C:1988:368; and judgment in Neotype Techmashexport v Commission and Council, cited in paragraph 44 above, EU:C:1990:295, paragraphs 12 and 14).
48 In his opinion in Brother v Commission (56/85, ECR, EU:C:1988:113), Advocate General Slynn stated, in essence, that, although it was probable that the definitive regulation might novate the regulation imposing a provisional duty in part, it was wrong to assert that the effect complained of, which was brought into being ratione temporis pursuant to the provisional regulation, had been created by that regulation.
49 As regards the elements and effects of the provisional regulation which have been confirmed and maintained, and thus in respect of which the definitive regulation replaced the provisional regulation, it is clear from the last sentence of paragraph 14 of the judgment in Neotype Techmashexport v Commission and Council, cited in paragraph 44 above (EU:C:1990:295), that the legality of the provisional regulation has no bearing on any claim for damages. Consequently, as far as those elements of the provisional regulation and its effects, which have been confirmed and maintained in the definitive regulation, it is not possible to found an action for damages on the provisional regulation.
50 By contrast, the legality of a definitive regulation providing for the collection of the provisional anti-dumping duty may be affected by any illegality of the provisional regulation only in so far as that illegality is reflected in the definitive regulation (judgments in Neotype Techmashexport v Commission and Council, cited in paragraph 44 above, EU:C:1990:295, paragraph 69, and of 3 May 2001 in Ajinomoto and NutraSweet v Council and Commission, C‑76/98 P and C‑77/98 P, ECR, EU:C:2001:234, paragraph 65).
51 Accordingly, autonomous or independent effects, capable of being attributed solely to the regulation imposing the provisional anti-dumping duty following the entry into force of the regulation imposing a definitive anti-dumping duty, and thus not maintained by the definitive regulation, must be capable of being the subject of an action contesting the provisional regulation (see, to that effect, Opinions of Advocate General Slynn in Brother v Commission, cited in paragraph 48 above, EU:C:1988:113, and in Technointorg v Commission and Council, cited in paragraph 47 above, EU:C:1988:368). To that effect, an action for compensation of an alleged loss independent of that caused by the definitive regulation can be founded on the provisional regulation (see, to that effect, order in Charron Inox and Almet v Commission and Council, cited in paragraph 44 above, EU:T:2013:4, paragraph 32).
52 That situation was specifically mentioned, in particular in the judgment in Neotype Techmashexport v Commission and Council, cited in paragraph 44 above (EU:C:1990:295, paragraph 15), in the Opinion of Advocate General Slynn in Technointorg v Commission and Council, cited in paragraph 47 above (EU:C:1988:368), and in the order in BSC Footwear Supplies and Others v Commission, cited in paragraph 44 above (EU:T:1998:147, paragraph 15), in relation to a potential loss of interest on the sums secured by virtue of a provisional anti-dumping duty which was subsequently reimbursed pursuant to the definitive regulation. In those specific situations, the provisional regulation could have created a loss that was not maintained by the definitive regulation. An action for damages founded on the illegality of the definitive regulation would not be of any benefit to the applicants in question, because since the alleged illegality of the provisional regulation was not maintained in the definitive regulation, it would not be reflected in the latter regulation, with the result that the definitive regulation was neither affected nor invalidated by it.
53 It follows from that case-law that it is necessary to ascertain whether the definitive regulation confirms and maintains all of the elements, and/or the contested effects, of the provisional regulation, so that the definitive regulation replaces the provisional regulation and so that, following the entry into force of the definitive regulation, no legal effect independent of the provisional regulation remains with the result that actions founded on the definitive regulation would be capable of redressing the situation of the applicants.
54 That conclusion is supported by the fact that, if the continuing existence of an interest in bringing proceedings to contest a provisional anti-dumping regulation depended upon the question of establishing the rule under which the alleged loss arose ratione temporis, the Court would, in the situations giving rise to the judgments in Technointorg v Commission and Council, cited in paragraph 43 above (EU:C:1988:470, paragraph 13), or Neotype Techmashexport v Commission and Council, cited in paragraph 44 above (EU:C:1990:295, paragraph 14), already have allowed the applicants, as importers into the EU, to contest the provisional regulations affecting them, since it was, in fact, on the basis of those regulations that the losses at issue arose. However, as has just been pointed out, the Court has not held that temporal criterion to be decisive.
55 In the present case, as the Commission maintains, by ordering the definitive collection of the provisional anti-dumping duties in relation to the products indicated in Article 2(2) of the definitive regulation, within the limits of the rate definitively imposed, and by ordering the release of the sums deposited in respect of the provisional anti-dumping duty for imports of the products listed in Article 2(1), the definitive regulation confirmed and maintained the elements and effects which are contested in respect of the provisional regulation.
56 As regards the applicants, which are European producers of all of those products, the definitive regulation thus confirmed and maintained the alleged lack of provisional protection for all of the products concerned, and, as far as concerns in particular the products specified in Article 2(1) of the definitive regulation, it even reduced or eliminated it.
57 The definitive regulation therefore replaced the provisional regulation in its entirety.
58 It is true that Article 10(3) of the basic regulation prevents the rate of the provisional anti-dumping duty imposed by Article 1(2)(i) of the contested regulation, namely 11.8%, from being increased retrospectively by the definitive regulation. However, that is not sufficient, in the light of the criteria established by the case-law, for it to be accepted that the applicants continue to have an interest in bringing an action for annulment of the provisional regulation and for damages on the basis of that regulation.
59 Although the Council cannot be criticised, in the context of the definitive regulation, for not having increased the provisional anti-dumping duties retrospectively, it would have been possible to found an action for annulment and for non-contractual liability.
60 First, the contested elements and effects of the provisional regulation were maintained, without mitigation, in the definitive regulation. Thus, although the anti-dumping duty imposed by the provisional regulation can no longer be increased, any illegality committed under that regulation has plainly been carried across to the definitive regulation because the amount of the anti-dumping duties which could be collected under the definitive regulation, in respect of the period from 6 June to 5 August 2013, was limited by the provisions of the provisional regulation, and in particular by Article 1(2)(i) of that regulation. The provisional regulation is therefore a potential source of illegality of the definitive regulation.
61 Secondly, as in essence the Commission maintains, the right to provisional protection ultimately arises by virtue of the definitive regulation. Article 10(2) of the basic regulation provides that, where the facts as finally established show that there is dumping and injury it is the Council that is to decide what proportion of the provisional anti-dumping duty is to be collected.
62 The alleged injury consisting in loss caused by a lack of sufficient protection, which arose ratione temporis under the provisional regulation, will continue to exist following the adoption of the definitive regulation, although only by virtue and within the scope of the latter regulation. Thus, as is indicated in the Opinion of Advocate General Slynn in Brother v Commission, cited in paragraph 48 above (EU:C:1988:113), it would be wrong to assert that the effect complained of in the present case had been created by the provisional regulation. The provisional regulation does not cause any loss other than that caused by the definitive regulation.
63 If the definitive regulation had found that there had been neither dumping nor loss suffered by the Union industry, the applicants would retrospectively have had no right to provisional anti-dumping protection. Thus, as the Commission emphasises, the issue of the alleged loss caused by the provisional regulation to the applicants would not even arise. It is therefore the definitive regulation that could have served as a basis for their action for compensation.
64 By contrast, in the situation envisaged in paragraph 15 of the judgment in Neotype Techmashexport v Commission and Council, cited in paragraph 44 above (EU:C:1990:295), the loss caused to the importers was actually created by the provisional regulation, because it established an anti-dumping duty at a level higher than that subsequently established by the definitive regulation. In the case giving rise to that judgment, the illegality of the provisional regulation was not reflected in the definitive regulation. The rule adopted in the judgment in Neotype Techmashexport v Commission and Council, cited in paragraph 44 above (EU:C:1990:29, paragraph 15), and which has not, moreover, been invoked by the applicants, cannot be applied by analogy to the facts of the present case.
65 For the reasons given, the interest of the applicants to bring an action has disappeared both as regards the annulment of the provisional regulation and for damages on the basis of that regulation.
66 That solution is, moreover, supported by considerations of the sound administration of justice.
67 First, if it had been held the members of the Union industry had a continuing interest in bringing an action for annulment of the provisional regulation, they would, in fact, be obliged to apply, in the future, for the annulment of provisional regulations or for damages on the basis of those regulations even before the products covered by the definitive regulation were defined in detail and before the rate of anti-dumping duty applied retrospectively and definitively to the period covered by the provisional regulation was determined. As in the present case, actions for damages on the basis of provisional regulations could thus be insufficient as regards the potential negative effects definitively arising subsequently to the provisional regulation. Specifically, the present action does not even address the fact, which became apparent following the adoption of the definitive regulation, that the EU institutions did not establish any protection through provisional anti-dumping measures as regards the products listed in Article 2(1) of the definitive regulation.
68 Secondly, in order to ascertain whether actions brought against, or on the basis of, the provisional regulation, were well founded, it would plainly be necessary to take account of the ultimate findings set out in the definitive regulation. It could not be held that the provisional anti-dumping duties should had been fixed at a certain rate, if that rate later proved to be higher than that definitively established by the Council for the period of application of the provisional regulation. Accordingly, the applicants cannot be compensated for the lack of protection relating to the products listed in Article 2(1) of the definitive regulation because the amounts secured by way of provisional duty were released as regards those products.
69 Only an action based upon the definitive regulation would be capable of addressing the situation in its entirety.
70 It follows from all of the foregoing that there is no need to adjudicate on the first and third heads of claim.
Costs
71 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
72 Where a case does not proceed to judgment, in accordance with Article 87(6) of the Rules of Procedure, the costs are to be in the discretion of the Court.
73 In the present case, since the second head of claim is manifestly inadmissible, and since there is no need to adjudicate on the first and third heads of claim, the Court considers that it would be appropriate in the circumstances of the case to order that the applicants are to bear their own costs as well as one-third of the costs of the Commission, and that the Commission is to bear the remainder of its own costs.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby orders:
1. The second head of claim of SolarWorld AG and Solsonica SpA, seeking an order that the customs authorities of the Member States be directed to apply the anti-dumping duty rates set out in Article 1(2)(ii) of Commission Regulation (EU) No 513/2013 of 4 June 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 the People’s Republic of China and amending Regulation (EU) No 182/2013 making these imports originating in or consigned from the People’s Republic of China subject to registration, as from 6 June 2013, is manifestly inadmissible.
2. There is no longer any need to adjudicate on the action for annulment of Regulation No 513/2013, nor on the action for damages.
3. SolarWorld and Solsonica shall bear their own costs, as well as one-third of the costs of the European Commission. The latter shall bear the remainder of its own costs.
Luxembourg, 14 April 2015.