CFI, 6th chamber, January 10, 2008, No T-314/06

THE COURT OF FIRST INSTANCEOF THE EUROPEAN COMMUNITIES (Sixth Chamber)

Background to the dispute

1 On 28 February 2006 the Commission adopted Regulation (EC) No 355-2006 imposing a provisional anti-dumping duty on imports of certain side-by-side refrigerators originating in the Republic of Korea (OJ 2006 L 59, p. 12; 'the provisional regulation'). Recital 9 in the preamble to that regulation defines the product concerned by the provisional anti-dumping duty as side-by-side refrigerators ('SxS refrigerators'), that is, 'combined refrigerator-freezers of a capacity exceeding 400 litres, with at least two separate external doors fitted side-by-side, originating in the Republic of Korea, currently classifiable within CN code ex 8418 10 20'. That definition thereby covered a three-door SxS refrigerator model exported, inter alia, by the Korean company LG Electronics ('LG').

2 On 25 August 2006 the Council adopted Regulation (EC) No 1289-2006 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain side-by-side refrigerators originating in the Republic of Korea (OJ 2006 L 236, p. 11; 'the definitive regulation'). In recital 16 in the preamble to that regulation, the Council, on the Commission's proposal, amended the definition of the product concerned and concluded that it was to include only 'combined refrigerator-freezers with a capacity exceeding 400 litres and with the freezer and refrigerator compartments placed side-by-side, originating in the Republic of Korea, currently classifiable within CN code ex 8418 10 20', thereby excluding the three-door SxS refrigerator model from the scope of the definitive regulation.

Procedure

3 By application lodged at the Registry of the Court of First Instance on 17 November 2006, the applicant brought an action for annulment of the definitive regulation.

4 By document lodged at the Registry of the Court on 11 January 2007, the Commission applied for leave to intervene in this case in support of the form of order sought by the Council.

5 By documents lodged at the Registry of the Court on 9 February 2007, the European Committee of Domestic Equipment Manufacturers (CECED) and AB Electrolux applied for leave to intervene in this case in support of the form of order sought by the applicant.

6 By application lodged at the Registry of the Court on 14 February 2007, LG sought leave to intervene in this case in support of the form of order sought by the Council.

7 By order of 26 February 2007, the President of the Third Chamber of the Court granted the Commission leave to intervene in the case.

8 In its observations lodged at the Registry of the Court on 14 March 2007, the Council raised objections to Electrolux's application to intervene.

9 In its observations lodged at the Registry of the Court on 27 March 2007, the applicant stated that it did not have any objections to the intervention of Electrolux.

10 By order of 10 May 2007, the President of the Third Chamber of the Court granted CECED and LG leave to intervene in the proceedings.

11 By document lodged at the Court Registry on 28 June 2007 the Italian Republic sought leave to intervene in support of the form of order sought by the applicant.

12 By order of 4 September 2007, the President of the Third Chamber of the Court of First Instance granted the Italian Republic leave to intervene in the case.

13 In accordance with the third subparagraph of Article 116(1) of the Rules of Procedure of the Court of First Instance, the President of the Third Chamber has referred the decision on Electrolux's application for leave to intervene to the Chamber.

14 Following the change in the composition of the Chambers of the Court of First Instance, the Judge-Rapporteur is now attached to the Sixth Chamber, to which this case has thus been assigned.

The application for leave to intervene

Arguments of the parties

15 Electrolux submits that it is one of the main producers of traditional SxS refrigerators which it exports from the United States to the Community.

16 Electrolux points out that it participated in the administrative procedure and, in the course of that procedure, on 18 October 2005 it submitted to the Commission preliminary comments on a range of issues, specifically, on the definition of the product concerned.

17 Electrolux maintains that its legal interest in intervening in the proceedings stems from the fact that it has been, like the applicant, directly affected by the unfair trade practices of the Korean exporting producers.

18 Accordingly, Electrolux considers itself to have a direct, existing interest in the grant of the form of order sought by the applicant (order in Case T-410-03 Hoechst v Commission [2004] ECR II-4451, paragraph 14).

19 The result of the exclusion of the three-door SxS refrigerators originating in the Republic of Korea from the scope of the antidumping duties imposed by the definitive regulation is to dilute the remedial effect of those duties on dumped Korean imports, an effect from which European companies, including Electrolux, would have hoped to benefit as a result of the adoption of that regulation.

20 The Council submits, first, that Electrolux does not have a direct, existing interest in the result of the case within the meaning of the case law. Electrolux has never produced traditional two-door SxS refrigerators or three-door models in the Community but merely imported traditional two-door SxS refrigerators from the United States. The Council draws attention to the fact that Electrolux was therefore not a complainant in the investigation which led to the adoption of the definitive regulation and, moreover, would not have even met the conditions required for that purpose. The Council observes that, as is apparent from recital 104 in the preamble to the provisional regulation, Electrolux also does not claim to be about to start the production in the Community of traditional two-door SxS refrigerators or three-door models. Electrolux merely states that, after planning to start such production in the Community, it put that plan on hold because of the Korean imports, but it does not adduce any evidence in support of that claim. Electrolux also does not claim - and does not provide any evidence to that effect - that the exclusion of three-door SxS refrigerators from the scope of the definitive regulation prevents it from producing them in the Community, nor that it would start producing traditional SxS refrigerators in the Community if the three-door models were covered by the anti-dumping measures. The Council, supported by the Commission, submits, secondly, that the application for leave to intervene must not be allowed on the ground that the action in the main proceedings is inadmissible in so far as the definitive regulation is not of direct or individual concern to the applicant in the main proceedings and the latter has no interest in obtaining its annulment.

21 The Council maintains that the right to intervene should be restricted to those parties which are directly affected by the adoption or annulment of the measures. These are, in particular, the exporters and importers of the products which are subject to the anti-dumping duties, the Community producers who made the complaint and, depending on the circumstances, other Community producers of the product concerned.

22 The Council furthermore draws attention to the fact that CECED also sought leave to intervene in this case. Since Electrolux is a member of that organisation, it can use this channel to assert its interests.

23 Lastly, Electrolux cannot rely on the mere fact of having previously participated in the administrative procedure before the Commission. Pursuant to case-law, a participant in the administrative procedure before the Commission does not automatically have a right to intervene in the case subsequently brought before the Court of First Instance but must, on the contrary, prove that it has an interest which is sufficiently direct in the result of the case (order in Case T-18-97 Atlantic Container Line and Others v Commission [1998] ECR II-589, paragraphs 2, 18 and 19).

Findings of the Court

24 The application to intervene was made in accordance with Article 115 of the Rules of Procedure.

25 Under the second paragraph of Article 40 of the Statute of the Court of Justice, applicable to the procedure before the Court of First Instance pursuant to the first paragraph of Article 53 of that Statute, any person establishing an interest in the result of any case other than cases between Member States, between institutions of the Communities or between Member States and institutions of the Communities has the right to intervene in that case.

26 It is settled case-law that an interest in the result of a case for the purposes of that provision must be defined in the light of the actual subject-matter of the case and must be construed as a direct, existing interest in the grant of the order as sought and not an interest in relation to the pleas in law put forward. The 'result' of a case is to be understood as the final decision sought from the court before which the case has been brought, as it would be laid down in the operative part of the judgment. It is necessary, in particular, to ascertain whether the intervener is directly affected by the contested measure and whether his interest in the result of the case is established (see the order in Case T-15-02 BASF v Commission [2003] ECR II-213, paragraph 26, and the case-law cited).

27 In this instance, it must be stated that Electrolux does not have a direct, existing interest in the result of the case. It is common ground that the applicant for leave to intervene is not a Community producer of the like product for the purposes of Article 4 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). Accordingly, it cannot claim the benefit of Community measures for the protection of trade.

28 Neither of Electrolux's two arguments can affect that finding.

29 First, as regards Electrolux's claim that it had planned to start producing traditional two-door and three-door SxS refrigerators in the Community but had subsequently abandoned that plan because of the Korean imports, it need only be observed that such a claim, which is moreover not substantiated by any concrete evidence and relates to a future and hypothetical event, is not capable of demonstrating an existing and established interest in the result of the case.

30 Secondly, as regards the argument relating to the fact that it imports a three-door SxS model of refrigerator from the United States into the Community, it should be recalled that, under Article 4 of Regulation No 384-96, the adoption by the Community of anti-dumping measures is intended to protect Community industry from dumping practices relating to products from non-member States. However, unlike the applicant, Electrolux does not produce in the Community either two door or three-door SxS refrigerators, but imports them from the United States. Therefore, even if the form of order sought by the applicant were granted in so far as the Council was found to have erred in failing to include three-door SxS refrigerators in the definition of the product concerned, that result could only ever affect Electrolux incidentally and indirectly, since it imports into the Community, but does not manufacture in the Community, the three-door SxS refrigerators. Accordingly, Electrolux does not have a direct and established interest in the result of the case.

31 It follows from the foregoing that Electrolux's application for leave to intervene must be dismissed.

Costs

32 By virtue of Article 87(1) of the Rules of Procedure, a decision as to costs is to be given in the final judgment or in the order which closes the proceedings. The present order closes the proceedings in so far as Electrolux is concerned. A decision should accordingly be made on the costs relating to its request for leave to intervene.

33 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. Since Electrolux has been unsuccessful, it must be ordered to pay its own costs and those of the Council in connection with the intervention proceedings, in accordance with the form of order sought by the Council. Since the applicant has made no application for costs, it must be ordered to bear its own costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Sixth Chamber)

hereby orders:

1. The application brought by Electrolux for leave to intervene is dismissed.

2. Electrolux shall pay the costs of the Council in connection with the intervention proceedings and its own costs.

3. Whirlpool Europe Srl shall bear its own costs in connection with the intervention proceedings.