ORDER OF THE COURT OF FIRST INSTANCE (Second Chamber)
12 May 2009 (*)
(Actions for annulment – Period allowed for commencing proceedings – Partial inadmissibility – Intervention)
In Case T‑190/08,
Chelyabinsk electrometallurgical integrated plant OAO (CHEMK), established in Chelyabinsk (Russia),
Kuzneckie ferrosplavy OAO (KF), established in Novokuznetsk (Russia),
represented by P. Vander Schueren, lawyer,
applicants,
v
Council of the European Union, represented by J.-P. Hix, acting as Agent, G. Berrisch and G. Wolf, lawyers,
and
Commission of the European Communities, represented by H. van Vliet and K. Talabér‑Ritz, acting as Agents,
defendants,
ACTION for annulment in part of Council Regulation (EC) No 172/2008 of 25 February 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ferro-silicon originating in the People’s Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia (OJ 2008 L 55, p. 6), and, in the alternative, an action for annulment of the Commission decision of 28 February 2008 rejecting the applicants’ request for the suspension of anti-dumping duties,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Second Chamber),
composed of I. Pelikánová, President, K. Jürimäe (Rapporteur) and S. Soldevila Fragoso, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicants, Chelyabinsk electrometallurgical integrated plant OAO (CHEMK) and Kuzneckie ferrosplavy OAO (KF), are Russian companies which produce ferro-silicon.
2 Following a complaint lodged on 16 October 2006 by the liaison committee for ferro-alloy industries (Euroalliages), the Commission initiated anti-dumping proceedings relating to imports of ferro-silicon originating in the People’s Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia, pursuant to Article 5 of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1), as amended by Council Regulation (EC) No 2117/2005 of 21 December 2005 (OJ 2005 L 340, p. 17) (‘the basic regulation’).
3 On 28 August 2007, the Commission adopted Regulation (EC) No 994/2007 imposing a provisional anti-dumping duty on imports of ferro-silicon originating in the People’s Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia (OJ 2007 L 223, p. 1).
4 On 8 February 2008, the applicants lodged a request with the Commission for suspension of the intended anti-dumping measures, pursuant to Article 14(4) of the basic regulation.
5 On 25 February 2008, the Council adopted Regulation (EC) No 172/2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ferro-silicon originating in the People’s Republic of China, Egypt, Kazakhstan, the former Yugoslav Republic of Macedonia and Russia (OJ 2008 L 55, p. 6) (‘the contested regulation’).
6 By letter dated 28 February 2008 and received by the applicants on 3 March 2008, the Commission rejected the request for suspension (‘the contested decision’).
Procedure
7 By application lodged at the Registry of the Court of First Instance on 14 May 2008, the applicants brought an action for annulment of the contested regulation and, in the alternative, for annulment of the contested decision. While the main action is brought against the Council, the alternative action is brought against the Commission.
8 By document lodged at the Registry of the Court on 30 May 2008, the applicants applied for measures of organisation of procedure and for measures of inquiry.
9 By document lodged at the Registry of the Court on 19 September 2008, the Commission raised a plea of inadmissibility relating to the action brought against the contested decision. By separate document lodged at the Registry of the Court on the same day, the Commission sought leave to intervene in support of the form of order sought by the Council if that action were declared to be inadmissible.
10 By document lodged at the Registry of the Court on 12 January 2009, the applicants submitted their observations on that plea of inadmissibility.
Forms of order sought
11 In their application, the applicants claim that the Court should:
– annul the contested decision in so far as it affects them;
– order the Council to pay the costs;
– in the alternative, annul the contested decision and order the Commission to pay the costs.
12 The Commission contends that the Court should:
– dismiss the action as inadmissible in so far as it is directed against the Commission and, in that case, allow it to intervene in support of the Council;
– order the applicants to pay the costs;
– in the alternative, fix a date for the defence to be lodged.
13 In their observations on the plea of inadmissibility and the application for leave to intervene, the applicants claim that the Court should:
– declare the action to be admissible;
– order the Commission to pay the costs.
14 With regard to the application for measures of organisation of procedure and for measures of inquiry, the applicants claim that the Court should order the Council to produce documents by means of measures of organisation of procedure or, in the alternative, by means of measures of inquiry.
15 The Council and the Commission contend that the Court should dismiss the application for measures of organisation of procedure and for measures of inquiry.
Law
The plea of inadmissibility
16 Pursuant to Article 114(1) of the Rules of Procedure of the Court of First Instance, if a party applies, the Court can make a decision on inadmissibility without going to the substance of the case. In accordance with Article 114(3) thereof, the remainder of the proceedings are to be oral, unless the Court otherwise decides. In the present case, the Court considers that it has sufficient information from the documents in the file and decides that it is not necessary to initiate the oral procedure.
Arguments of the parties
17 The Commission contends that the action, in so far as it is directed against the contested decision, was brought out of time and, in the alternative, that it is inadmissible in so far as the applicants are not individually concerned by the contested decision.
18 The applicants claim that the Commission’s arguments should be rejected.
Findings of the Court
19 Under the fifth subparagraph of Article 230 EC, an action for annulment is to be brought within two months of the publication of the measure, or of its notification to the plaintiff, or, in the absence thereof, of the day on which it came to the knowledge of the latter, as the case may be. In accordance with Article 102(2) of the Rules of Procedure, that time-limit must, furthermore, be extended on account of distance by a single period of 10 days.
20 Article 101(1) of the Rules of Procedure lays down, as regards the rules on the calculation of periods of time, the following:
‘…
(a) Where a period expressed in days, weeks, months or years is to be calculated from the moment at which an event occurs or an action takes place, the day during which that event occurs or that action takes place shall not be counted as falling within the period in question;
(b) A period expressed in weeks, months or in years shall end with the expiry of whichever day in the last week, month or year is the same day of the week, or falls on the same date, as the day during which the event or action from which the period is to be calculated occurred or took place. …’
21 It is apparent from that provision that, in the case of a measure which has to be notified, time does not begin to run until the end of the day of notification. Where the time-limit for commencing proceedings is expressed in months, that period expires at the end of the day which, in the month indicated by the time-limit, bears the same number as the day from which time started to run, that is to say the day of notification (see, by analogy, the order in Case C-406/01 Germany v Parliament and Council [2002] ECR I-4561, paragraph 14).
22 In the present case, the registered letter by which the Commission notified the applicants of the rejection of their request for suspension, and which constitutes the contested decision, reached them on 3 March 2008. The two-month time-limit under Article 230 EC therefore started to run on 4 March 2008 at 0.00 hrs and ended at midnight on 3 May. Extended on account of distance by a single period of 10 days, the time-limit expired on 13 May 2008 at midnight.
23 As the application was lodged at the Registry of the Court on 14 May 2008, the action brought in the alternative against the contested decision was brought out of time. Consequently, the present action, in so far as it is directed, in the alternative, against the contested decision, must be dismissed as inadmissible.
The application for leave to intervene
24 In so far as the action directed against the contested decision is inadmissible, the Commission can no longer be regarded as a defendant to the proceedings. It is therefore appropriate to consider its application for leave to intervene.
25 That application for leave to intervene was served on the parties, in accordance with Article 116(1) of the Rules of Procedure.
26 Since that application was made in accordance with Article 115 of the Rules of Procedure, it must be allowed, in accordance with the first subparagraph of Article 40 of the Statute of the Court of Justice, applicable to the procedure before the Court of First Instance by virtue of the first subparagraph of Article 53 thereof. As the notice in the Official Journal of the European Union referred to in Article 24(6) of the Rules of Procedure was published on 2 August 2008, the application for leave to intervene was submitted within the time-limit provided for by Article 115(1) of those rules and the rights of the intervener will be those provided for by Article 116(2) to (4) of those rules.
The application for measures of organisation of procedure and for measures of inquiry
27 Pursuant to Article 64(1) of the Rules of Procedure, the purpose of measures of organisation of procedure is to ensure that cases are prepared for hearing, procedures carried out and disputes resolved under the best possible conditions. Under Article 64(2)(b) and (c) of the Rules of Procedure, those measures are, in particular, to have as their purpose to determine the points on which the parties must present further argument or which call for measures of inquiry and to clarify the forms of order sought by the parties, their pleas in law and arguments and the points at issue between them. In accordance with Articles 65 to 67 of the Rules of Procedure, the Court can carry out measures of inquiry.
28 In view of the fact that the rejoinder has not yet been submitted, a decision on the merits of the application for measures of organisation of procedure and for measures of inquiry will be taken in due course.
Costs
29 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. As the applicants have been unsuccessful in their action for annulment of the contested decision, they must be ordered to pay the costs in relation to the plea of inadmissibility, in accordance with the form of order sought by the Commission.
On those grounds,
THE COURT OF FIRST INSTANCE (Second Chamber)
hereby orders:
1. The action is dismissed as inadmissible in so far as it is directed against the Commission decision of 28 February 2008 rejecting the request of Chelyabinsk electrometallurgical integrated plant OAO (CHEMK) and Kuzneckie ferrosplavy OAO (KF) for suspension of anti-dumping duties.
2. The Commission is granted leave to intervene in Case T-190/08 in support of the form of order sought by the Council.
3. The Registrar shall send to the Commission a copy of every document served on the parties.
4. A period shall be prescribed within which the Commission may submit a statement in intervention.
5. The decision on the application for measures of organisation of procedure and for measures of inquiry is reserved.
6. CHEMK and KF are ordered to pay the costs relating to the plea of inadmissibility. As to the remainder, the costs are reserved.
Luxembourg, 12 May 2009.