GC, 5th chamber, February 16, 2017, No T-783/14

THE GENERAL COURT (Fifth Chamber),

Background to the dispute

1 The applicant, SolarWorld AG, established in Bonn (Germany), is a European producer of crystalline silicon photovoltaic modules and key components which supports EU ProSun, an association of European producers of the products concerned.

2 On 25 July and 25 September 2012 respectively, EU ProSun lodged an anti-dumping and an anti-subsidy complaint on behalf of producers, including the applicant, representing more than 25 % of the total EU production of crystalline silicon photovoltaic modules and key components, with the European Commission, concerning imports of those products consigned from the People's Republic of China.

3 On 6 September 2012, the Commission published in the Official Journal of the European Union a notice of initiation of an anti-dumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in China (OJ 2012 C 269, p. 5).

4 In parallel, on 8 November 2012, the Commission published in the Official Journal a notice of initiation of an anti-subsidy proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in China (OJ 2012 C 340, p. 13).

5 The applicant cooperated in both proceedings.

6 On 4 June 2013, the Commission adopted Regulation (EU) N° 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) N° 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).

7 On 2 August 2013, the Commission adopted Decision 2013/423/EU accepting an undertaking offered in connection with the anti-dumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components (cells and wafers) originating in or consigned from the People's Republic of China (OJ 2013 L 209, p. 26) by a group of Chinese cooperating 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').

8 Recital 4 of that decision states:

"Changes in price levels can sometimes be addressed in an undertaking by an indexation method which links minimum import prices to prices of raw materials as quoted in recognised and publicly available sources. However, no correlation between prices of raw materials and those of final products that would allow for a reliable indexation method could be established in the present case. In order to address an established change in price levels, an alternative method had to be established and price reports by representative and publicly available databases (Bloomberg and pvXchange) specialised in the sector concerned have been used as a reference."

9 Clause 3.5 of the undertaking sets out the minimum import price ("MIP") adjustment methodology as follows:

"Upon request from [the] CCCME or on its own initiative, the [Commission] shall adapt the MIPs if over the period of a quarter preceding the given quarter the average price for that quarter differs by [confidential information] from the average of the international spot prices, as reported by Bloomberg database, for the last three calendar months preceding the month of entry into force of this Undertaking. In this case, the MIP for the following quarter shall be adapted by the 15th of the last month of the preceding quarter on the basis of the data of the previous quarter provided timely by the CCCME or collected by the [Commission] on its own initiative. Prices used as a benchmark for the adaptation under this Clause are international spot prices as reported by Bloomberg database. Spot prices excluding Chinese prices may be used as a benchmark, if made available by the Bloomberg database."

10 On 2 August 2013, the Commission adopted Regulation (EU) N° 748/2013 amending Regulation N° 513/2013 (OJ 2013 L 209, p. 1) in order to take account of Decision 2013/423. In essence, provided that certain conditions are fulfilled, Article 6 of that regulation, as amended, provides, inter alia, that imports declared for release into free circulation for products currently falling within CN code ex 3818 00 10 (TARIC codes 3818001011 and 3818001019) and CN code ex 8541 40 90 (TARIC codes 8541409021, 8541409029, 8541409031 and 8541409039) which are invoiced by companies from which undertakings have been accepted by the Commission and whose names are listed in the Annex to Decision 2013/423, are to be exempt from the provisional anti-dumping duty imposed by Article 1 of the regulation.

11 According to recital 4 of 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 (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), following the adoption of the provisional anti-dumping measures, the Commission continued the investigation of dumping, injury and Union interest, as well as the parallel anti-subsidy proceeding. Wafers were excluded from the scope of both investigations and thus from the scope of the definitive measures.

12 It is clear from recitals 7 to 10 and Article 1 of Decision 2013/707 that following the definitive notification 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 the injurious effects of the subsidised imports. In addition, a number of additional exporting producers asked to participate in that undertaking. Furthermore, the CCCME and the exporting producers requested a revision of the undertaking to take account of the exclusion of wafers from the scope of the investigation.

13 Clause 3.5 of the undertaking in the version accepted by Decision 2013/423 has not been amended.

14 According to recital 5 of Decision 2013/707, the anti-dumping investigation confirmed the provisional findings of injurious dumping.

15 The definitive findings of the anti-dumping investigation are set out in Council Implementing Regulation (EU) N° 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 anti-dumping regulation").

16 Article 1 thereof imposes an anti-dumping duty applying to exporting producers ranging from 27.3 to 64.9 %.

17 Under Article 2(1) of the definitive anti-dumping regulation:

"The amounts secured by way of the provisional anti-dumping duty pursuant to Regulation ... N° 513/2013 on imports of wafers (the wafers have a thickness not exceeding 400 micrometres) and modules or panels with a[n] 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."

18 Article 2(2) of that regulation provides:

"The amounts secured by way of the provisional anti-dumping duty pursuant to Regulation ... N° 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 and ex 8541 40 90 (TARIC codes 8501310081, 8501310089, 8501320041, 8501320049, 8501330061, 8501330069, 8501340041, 8501340049, 8501612041, 8501612049, 8501618041, 8501618049, 8501620061, 8501620069, 8501630041, 8501630049, 8501640041, 8501640049, 8541409021, 8541409029, 8541409031 and 8541409039) and originating in or consigned from the People's Republic of China, unless they are in transit in the sense of Article V GATT, shall be definitively collected. The amounts secured in excess of the definitive rate of anti-dumping duties shall be released."

19 Subject to certain conditions, Article 3 of that regulation provides, in essence, that imports declared for release into free circulation for products currently falling within CN code ex 8541 40 90 (TARIC codes 8541409021, 8541409029, 8541409031 and 8541409039) invoiced by companies from which undertakings have been accepted by the Commission, and whose names are listed in the Annex to Decision 2013/707, are to be exempt from the anti-dumping duty imposed by Article 1 of the regulation.

20 The definitive findings of the anti-subsidy investigation are set out in Council Implementing Regulation (EU) N° 1239/2013 of 2 December 2013 which imposes 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 2013 L 325, p. 66).

21 Article 1 thereof imposes a countervailing duty applying to exporting producers ranging from 0 to 11.5 %.

22 Subject to certain conditions, Article 2 of that regulation provides, in essence, that imports declared for release into free circulation for products currently falling within CN code ex 8541 40 90 (TARIC codes 8541409021, 8541409029, 8541409031 and 8541409039) invoiced by companies from which undertakings have been accepted by the Commission, whose names are listed in the Annex to Decision 2013/707, are to be exempt from the countervailing duty imposed by Article 1 of the regulation.

23 By e-mail of 10 March 2014, the CCCME requested an adjustment of the MIP from the Commission with effect from 1 April 2014. By letter of 15 March 2014 addressed to the CCCME, the Commission approved, with reference to Clause 3.5 of the undertaking, the downward adjustment of the MIP.

24 Subsequently, EU ProSun made several written submissions and participated in hearings with the Commission objecting, first, to the downward adjustment of the MIP and, second, to the interpretation of Clause 3.5 of the undertaking by the Commission and the CCCME. EU ProSun repeatedly claimed, inter alia, that the interpretation given by the Commission to that clause was contrary both to Article 8(1) of Council Regulation (EC) N° 1225/2009 of 30 N°vember 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51, "the basic anti-dumping regulation") and to Article 13(1) of Council Regulation (EC) N° 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Community (OJ 2009 L 188, p. 93, "the basic anti-subsidy regulation") in so far as the Commission contended that the adjustment of the MIP under the undertaking was automatic and could occur without it being verified whether the adjusted MIP is set at a level which removes the injurious effects of the dumping and subsidies.

25 In response to those objections, the Commission initiated consultations with the CCCME concerning the interpretation of Clause 3.5 of the undertaking. The outcome of those consultations was published in Implementing Decision 2014/657/EU of 10 September 2014 accepting a proposal by a group of exporting producers together with the [CCCME] for clarifications concerning the implementation of the undertaking referred to in Implementing Decision 2013/707 (OJ 2014 L 270, p. 6).

26 According to recital 11 of Decision 2014/657, that decision is aimed at a technical clarification and not at reviewing the measures that are in place.

27 As regards the criticism set out in paragraph 24 above, recital 16 of the decision states the following:

"Fourth, EU ProSun claimed that the adapted MIP does not remove injury caused to the Union industry. The Commission notes that the undertaking encompassed from the outset the initial MIP and a price adaptation. The assessment in Implementing Decision [2013/707] with regard to compliance with requirements for the acceptance of undertakings in the basic anti-dumping and the basic anti-subsidy regulations therefore covers the price adaptation. This price adaptation is an automatic exercise. The MIP and the price adaptation mechanism are applied in accordance with the requirements stipulated in Article 8 of the basic anti-dumping regulation and in Article 13 of the basic anti-subsidy regulation."

28 By letter of 12 September 2014 addressed to the Commission, the CCCME requested another adjustment of the MIP with effect from 1 October 2014. By letter of 15 September 2014 addressed to the CCCME, the Commission approved, with reference to Clause 3.5 of the undertaking, the adjustment and proceeded with the downward adjustment of the MIP ("the contested decision").

29 By letter of 2 October 2014, EU ProSun asked the Commission whether the adjustment of the MIP had been published in a formal decision and whether the Commission had conducted a prior assessment as to whether the adjusted MIP would remove the injurious effects of the dumping and subsidies. In its letter of 7 October 2014, the Commission answered both questions in the negative.

Procedure and forms of order sought

30 The applicant brought the present action by application lodged at the Court Registry on 25 November 2014.

31 On a proposal from the Judge-Rapporteur, the Court decided to open the oral part of the procedure. The parties presented oral argument and answered the questions put to them by the Court at the hearing on 9 November 2016.

32 The applicant claims that the Court should:

- declare the action to be admissible;

- annul the contested decision;

- order the Commission to pay the costs.

33 The Commission contends that the Court should:

- dismiss the action as inadmissible;

- in the alternative, dismiss the action as unfounded;

- order the applicant to pay the costs.

Law

34 In reliance, inter alia, on judgments of 27 March 1980, Sucrimex and Westzucker v Commission (133/79, EU:C:1980:104, paragraphs 12 to 19); of 4 October 1983, FEDIOL v Commission (191/82, EU:C:1983:259, paragraph 31); of 20 March 1985, Timex v Council and Commission (264/82, EU:C:1985:119, paragraph 16); of 5 May 1998, Dreyfus v Commission (C-386/96 P, EU:C:1998:193, paragraph 43); of 17 July 2008, Athinaïki Techniki v Commission (C-521/06 P, EU:C:2008:422, paragraphs 44 and 45), and of 20 June 2001, Euroalliages v Commission (T-188/99, EU:T:2001:166, paragraph 29), the applicant claims, in essence, that the contested decision has binding force and is of direct and individual concern to it within the meaning of the fourth paragraph of Article 263 TFEU.

35 The applicant also claims to have standing in the present case, in so far as, first, the annulment of the contested decision is capable of providing grounds for an action to establish non-contractual liability of the European Union. Second, the applicant claims to have a legitimate interest in ensuring that the alleged illegality of the contested decision is not repeated in the future.

36 As regards the substance of its claim, the applicant relies on a single plea in law alleging infringement of Article 8(1) of the basic anti-dumping regulation and of Article 13(1) of the basic anti-subsidy regulation.

37 The applicant takes the view, in essence, that it is clear from Article 8(1) of the basic anti-dumping regulation and from Article 13(1) of the basic anti-subsidy regulation that both the initial MIP and the adjusted MIPs must be set at levels that are such as to remove the injurious effects of the dumping and subsidies. It is clear from the letter of the Commission of 7 October 2014 that no assessment was made by the Commission in that regard before the adjustment at issue. It follows that the contested decision is contrary to the abovementioned provisions.

38 That view, it claims, is corroborated by the specific nature of the undertaking under Article 8 of the basic anti-dumping regulation and Article 13 of the basic anti-subsidy regulation, as an alternative measure to anti-dumping and anti-subsidy duties, since the undertaking is subject to continuous monitoring of its compliance, outside of the review proceedings governed by Article 11 of the basic anti-dumping regulation and by Article 19 of the basic anti-subsidy regulation.

39 As regards how to proceed with monitoring the elimination of the injurious effects of dumping and subsidies, Article 8 of the basic anti-dumping regulation and Article 13 of the basic anti-subsidy regulation leave the Commission wide discretion on how to proceed in this regard and, contrary to the written submissions of the Commission, in no way require that the Commission conduct a full review each quarter under Article 11 of the basic anti-dumping regulation and Article 19 of the basic anti-subsidy regulation. Thus, it is not for the applicant to instruct the Commission on how it conducts its monitoring.

40 Furthermore, given that the Commission must already monitor compliance with the undertaking of more than 100 Chinese exporting producers, it is not, contrary to what the Commission contends, overly burdensome for the Commission to undertake such additional monitoring of the elimination of the injurious effects of the dumping and subsidies through the adjusted MIPs. The applicant claims that the Commission's position is actually a consequence of the fact that it made no effort to monitor and evaluate any element of the injury situation of the EU producers before deciding to make the downward adjustment of the MIP.

41 The Commission disputes both the admissibility and the merits of the action.

42 As a preliminary matter, it must be noted that the Courts of the European Union are entitled to assess, according to the circumstances of each case, whether the proper administration of justice justifies the dismissal of the action on the merits without first ruling on its admissibility (see, to that effect, judgments of 26 February 2002, Council v Boehringer, C-23/00 P, EU:C:2002:118, paragraphs 51 and 52, and of 25 April 2013, Inuit Tapiriit Kanatami and Others v Commission, T-526/10, EU:T:2013:215, paragraph 20).

43 In the circumstances of the case and for the sake of economy of procedure, the applicant's claim for annulment should be considered first, without first ruling on its admissibility, as the action is, in any event and on the grounds set out below, wholly unfounded in law.

44 In that regard, in the first place, according to recitals 414 and 415 of the definitive anti-dumping regulation and to recital 842 of Regulation N° 1239/2013, in view of the conclusions reached with regard to dumping, the existence of a subsidy, injury, causation and Union interest, and in accordance with Article 9(4) of the basic regulation, it was considered that definitive anti-dumping measures should be imposed on imports of crystalline silicon photovoltaic modules or panels and cells of the type used in crystalline silicon photovoltaic modules or panels, originating in or consigned from China at the level of the lower of the dumping and the injury margins found, in accordance with the lesser duty rule. In this case the anti-dumping duty rate accordingly had to be set at the level of the injury margins found. As regards the countervailing duties, in view of the use of the lesser duty rule and the fact that the definitive subsidy margins are lower than the injury elimination level, it was considered appropriate, pursuant to Article 15 of the basic anti-subsidy regulation, to impose such duties at the level of the established definitive subsidy margins and then to establish a definitive anti-dumping duty up to the relevant injury elimination level.

45 In so far as only anti-dumping duties are established at a level to eliminate injury, and countervailing duties are established on a basis to eliminate the subsidy margin, the applicant's submission that the contested decision infringes Article 13(1) of the basic anti-subsidy regulation, because it was adopted without the Commission having satisfied itself that the adjusted MIP would eliminate the injury caused by dumping and subsidies, is not capable of demonstrating an infringement of that provision. It is therefore not necessary to examine the basic anti-subsidy regulation in greater detail.

46 In the second place, as regards the alleged infringement of Article 8(1) of the basic anti-dumping regulation, the applicant expressly confirmed at the hearing, in reply to a question put by the Court, that it was not raising a plea under Article 277 TFEU founded on the illegality of Clause 3.5 of the undertaking, or even of the decision accepting that undertaking, or of the definitive anti-dumping regulation, for infringement of Article 8(1) of the basic anti-dumping regulation.

47 Thus, it is clear that, in essence, the applicant merely claims that, in the absence of a verification of the elimination of the injurious effects of the dumping prior to the adjustment of the MIP, that clause was interpreted and applied in a way incompatible with Article 8(1) of the basic anti-dumping regulation. Therefore, as the Commission notes, it submits that the clause should have been interpreted and applied in the light of the latter provision.

48 Contrary to what the applicant claims, it is clear from the wording of Clause 3.5 of the undertaking that the adjustment of the MIP at the request of the CCCME or on the Commission's own initiative is automatic where certain economic conditions are satisfied. In the first and second sentence of that clause, the verb 'to adapt' is conjugated as "shall adapt", which reflects the obligation to adapt the MIP. There is, indeed, no element in the text in question capable of casting doubt on the automaticity of that adjustment. The wording of the clause therefore leaves no room for a systematic verification of the elimination of the injurious effects of the dumping prior to the adjustment of the MIP. That interpretation is indeed corroborated by Decision 2014/657, recital 16 of which states unambiguously that the adjustment is to be automatic.

49 Consequently, the applicant's interpretation of that clause runs contrary to its wording, and therefore cannot be accepted.

50 In the third place, and in any event, Article 8(1) of the basic anti-dumping regulation provides:

'Upon condition that a provisional affirmative determination of dumping and injury has been made, the Commission may accept satisfactory voluntary undertaking offers submitted by any exporter to revise its prices or to cease exports at dumped prices, if, after specific consultation of the Advisory Committee, it is satisfied that the injurious effect of the dumping is thereby eliminated. In such a case and as long as such undertakings are in force, the provisional duties imposed by the Commission in accordance with Article 7(1) or the definitive duties imposed by the Council in accordance with Article 9(4) as the case may be shall not apply to the relevant imports of the product concerned manufactured by the companies referred to in the Commission decision accepting undertakings, as subsequently amended. Price increases under such undertakings shall not be higher than necessary to eliminate the margin of dumping and they should be less than the margin of dumping if such increases would be adequate to remove the injury to the Community industry.'

51 That provision's purpose of safeguarding the protection granted to the EU industry must be effected by means of the MIP adjustment mechanism for which the undertaking in question provides.

52 As the Commission submits, by accepting the undertaking in its entirety in Decision 2013/707 it took the view that not only the initial MIP but also the adaptation mechanism ensured that the MIPs were always at a level sufficient to eliminate the injurious effects of the dumping.

53 Therefore, contrary to what the applicant claims, Article 8(1) of the basic anti-dumping regulation does not require the Commission to conduct systematic monitoring of the elimination of the injurious effects of the dumping prior to every application of Clause 3.5 of the undertaking leading to adaptation of the MIP.

54 It was, therefore, for the applicant to show that the adjustment mechanism itself did not allow for the objective pursued by Article 8(1) of the basic regulation to be attained.

55 In that connection, it should be recalled that, according to settled case-law, in the sphere of measures to protect trade, the EU institutions enjoy a wide discretion by reason of the complexity of the economic, political and legal situations which they have to examine. It follows that review by the Court of the assessments made by the institutions must be confined to ascertaining whether the procedural rules have been complied with, whether the facts on which the contested decision is based have been accurately stated and whether there has been any manifest error of assessment of the facts or any misuse of powers. The same applies as regards the adequacy and appropriateness of an undertaking offer within the meaning of Article 8(1) of the basic regulation (see, to that effect, judgment of 28 February 2008, AGST Draht- und Biegetechnik, C-398/05, EU:C:2008:126, paragraph 34; see also, to that effect, judgment of 22 May 2014, Guangdong Kito Ceramics and Others v Council, T-633/11, not published, EU:T:2014:271, paragraphs 41 and 42 and the case-law cited).

56 In the present case, the applicant has not put before the Court any evidence, or even a line of argumentation, capable of showing that the adjustment mechanism provided for under Clause 3.5 of the undertaking was manifestly inappropriate for ensuring that adjustments of MIP thereunder would be sufficient to eliminate the injury caused by dumped imports. The applicant merely submits that neither that clause nor the decision accepting the undertaking in themselves require that the MIPs, when adjusted downward according to that methodology, must also be adequate to eliminate the injurious effects of dumping and subsidies.

57 It is not for the Court to examine, and even less so of its own motion to confirm, such a submission by searching for the necessary information and arguments to that effect.

58 Consequently, since the applicant has not shown the manifestly inappropriate nature of the MIP adjustment mechanism under Clause 3.5 of the undertaking for ensuring that MIP adjustments on that basis are sufficient to eliminate the injury caused by the dumped imports, the applicant has not succeeded in showing that the contested decision is illegal.

59 The Court therefore dismisses the action as, in any event, lacking any foundation in law, without it being necessary to examine its admissibility.

Costs

60 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party's pleadings. Since the applicant has been unsuccessful, it must be ordered to pay the costs incurred by the Commission, in addition to its own costs, in accordance with the form of order sought by the Commission.

On those grounds,

THE GENERAL COURT (Fifth Chamber)

hereby:

1. Dismisses the action;

2. Orders SolarWorld AGto pay the costs.