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Corte di giustizia UEsentenza

Corte di giustizia UE n. 513/2016

ECLI:EU:C:2016:162
Testo integrale del provvedimento

Testo integrale del provvedimento

62015CO0312_EN

[OSCURATO:PERSONA] part

[OSCURATO:PERSONA] C‑312/15 P,

APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 24 June 2015, SolarWorld AG, established in Bonn (Germany), represented by L. Ruessmann, avocat, and J. Beck, Solicitor, appellant, the other parties to the proceedings being: [OSCURATO:SOCIETA], established in Cittaducale (Italy), applicant at first instance [OSCURATO:PERSONA], represented by J-F.

Brakeland, T. [OSCURATO:PERSONA] and A. Stobiecka-Kuik, acting as Agents, with an address for service in Luxembourg, defendant at first instance,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]),

composed of C. Lycourgos, President of the [OSCURATO:PERSONA], C. Vajda and K. Jürimäe (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: M. [OSCURATO:PERSONA]Bordona, Registrar: A. [OSCURATO:PERSONA], having regard to the decision taken, after hearing the [OSCURATO:PERSONA], to give a decision on the action by reasoned order, pursuant to [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, makes the following

[OSCURATO:PERSONA]

1. By its appeal, SolarWorld AG (‘SolarWorld’) asks the [OSCURATO:PERSONA] to set aside the order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 14 April 2015 in SolarWorld and [OSCURATO:SOCIETA] v [OSCURATO:PERSONA] (T‑393/13, EU:T:2015:211, ‘the order under appeal’), in so far as by that order the [OSCURATO:PERSONA] held that there was no longer any need to adjudicate on the action of SolarWorld and [OSCURATO:SOCIETA] (‘[OSCURATO:SOCIETA]’) for the annulment of [OSCURATO:PERSONA] (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 [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and amending [OSCURATO:PERSONA] (EU) No 182/2013 making these imports originating in or consigned from the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] subject to registration (OJ 2013 L 152, p. 5, ‘the regulation at issue’), and for compensation on the ground of non-contractual liability of the [OSCURATO:PERSONA] for the loss which SolarWorld and [OSCURATO:SOCIETA] suffered as a result of the application, from 6 June to 5 August 2013, of the provisional anti-dumping duties at the rate imposed by the regulation at issue.

Background to the proceedings and the regulation at issue

2. For the purposes of the present appeal, the background to the dispute, as set out in paragraphs 1 to 18 of the order under appeal, may be summarised as follows.

3. SolarWorld and [OSCURATO:SOCIETA] are [OSCURATO:PERSONA] producers of crystalline silicon photovoltaic modules and key components, members of EU ProSun, an association of [OSCURATO:PERSONA] producers of those products.

On 25 July 2012, EU ProSun lodged a complaint with the [OSCURATO:PERSONA] with regard to dumping practices in connection with imports of such products consigned from [OSCURATO:PERSONA].

4. On 6 September 2012, the [OSCURATO:PERSONA] published in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] 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 the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] (OJ 2012 C 269, p. 5), in which SolarWorld cooperated.

5. On 4 June 2013, the [OSCURATO:PERSONA] adopted the regulation at issue. [OSCURATO:PERSONA] 1(2)(i) of that regulation imposed a provisional anti-dumping duty of 11.8% on imports into the [OSCURATO:PERSONA], originating in or consigned from [OSCURATO:PERSONA], of crystalline silicon photovoltaic modules or panels and cells and wafers of the type used in crystalline silicon photovoltaic modules or panels for a two-month period from 6 June to 5 August 2013. [OSCURATO:PERSONA] 1(2)(ii) of the regulation imposes a specific anti-dumping duty from 6 August to 5 December 2013 on imports of certain exporting producers listed in the same regulation, ranging from 37.3% to 67.9%. [OSCURATO:PERSONA] 1(3) of the regulation the release for free circulation in the [OSCURATO:PERSONA] of the products concerned was made subject to the provision of a security equivalent to the amount of the provisional duty.

6. On 2 August 2013, the [OSCURATO:PERSONA] adopted [OSCURATO:PERSONA] (EU) No 748/2013 amending [OSCURATO:PERSONA] (EU) No 513/2013 (OJ 2013 L 209, p. 1), following its adoption of Decision 2013/423/EU of 2 August 2013 accepting an undertaking offered in connection with the anti-dumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] (OJ 2013 L 209, p. 26) by a group of Chinese exporting producers, listed in the annex to that decision, which had cooperated together with the [OSCURATO:PERSONA] of Commerce for Import and Export of Machinery and [OSCURATO:PERSONA].

As a result, certain imports were exempted from the provisional anti-dumping duty imposed by [OSCURATO:PERSONA] 1 of the regulation at issue.

7. Following the investigation initiated on the basis of the complaint of 25 July 2012, [OSCURATO:PERSONA] (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 [OSCURATO:PERSONA] of [OSCURATO:PERSONA] (OJ 2013 L 325, p. 1, ‘the definitive regulation’) was adopted.

8. [OSCURATO:PERSONA] 1 of the definitive regulation imposed a specific anti-dumping duty at rates ranging from 27.3% to 64.9% on the exporting producers listed in that regulation.

9. [OSCURATO:PERSONA] 2(2) of that regulation: ‘The amounts secured by way of the provisional anti-dumping duty pursuant to [OSCURATO:PERSONA] (EU) 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 and 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 the [OSCURATO:PERSONA] of [OSCURATO:PERSONA], unless they are in transit in the sense of [OSCURATO:PERSONA] V GATT, shall be definitively collected.

The amounts secured in excess of the definitive rate of anti-dumping duties shall be released.’ The proceedings before the [OSCURATO:PERSONA] and the order under appeal

10. By application lodged at the Registry of the [OSCURATO:PERSONA] on 1 August 2013, SolarWorld and [OSCURATO:SOCIETA] brought an action for the annulment of the regulation at issue in so far as, pursuant to [OSCURATO:PERSONA] 1(2) of that regulation, the rate of provisional anti-dumping duties was set from 6 June to 5 August 2013 at a level which eliminated neither the dumping nor the loss caused.

On the ground of non-contractual liability of the [OSCURATO:PERSONA], they also claimed compensation for the loss that they considered themselves to have suffered as a result of the application of that rate.

11. On 10 October 2014, the parties were called upon to submit their observations on a potential order that on the basis of [OSCURATO:PERSONA] 113 of the Rules of Procedure of the [OSCURATO:PERSONA] there was no need to adjudicate following the adoption of the definitive regulation.

The applicants at first instance responded to the [OSCURATO:PERSONA] that it should not order that there was no need to adjudicate and should give judgment on the substantive merits of the case.

12. By the order under appeal, the [OSCURATO:PERSONA] held, in essence, that in so far as the action concerned the annulment of the regulation at issue and the claim for compensation there was no need to adjudicate on it, on the ground that, as a result of the adoption of the definitive regulation, the applicants at first instance no longer had any interest in bringing proceedings.

Forms of order sought by the parties before the [OSCURATO:PERSONA]

13. SolarWorld claims that the [OSCURATO:PERSONA] should: – set aside the order under appeal in so far as the [OSCURATO:PERSONA] held that there was no longer any need to adjudicate on the action for annulment and for compensation; – declare the action in [OSCURATO:PERSONA] T‑393/13 admissible; – refer the case back to the [OSCURATO:PERSONA] for a decision on the substantive merits of the action.

14. [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] should: – dismiss the appeal as inadmissible and, in any event, unfounded, and – order SolarWorld to pay the costs. The appeal

15. [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], decide by reasoned order to dismiss the appeal in whole or in part without opening the oral procedure.

16. It is appropriate to use that power in this case. Arguments of the parties

17. In support of its appeal, SolarWorld relies on a single ground of appeal alleging errors of law by the [OSCURATO:PERSONA] in so far as it held that there was no longer any need to adjudicate on the action for annulment of the regulation at issue and for compensation of the loss suffered.

18. It claims that the reasoning of the [OSCURATO:PERSONA] is manifestly flawed in so far as it is based on EU case-law relating to importing and exporting producers’ lack of an interest in bringing proceedings in actions brought against provisional regulations where a definitive regulation had been adopted.

19. In view of the independent effect on the [OSCURATO:PERSONA] industry of the provisional anti-dumping duty imposed by the regulation at issue, which aims to provide that industry with temporary relief for the duration of the anti-dumping proceeding from injury suffered by the industry due to dumped imports, SolarWorld, in its capacity as a [OSCURATO:PERSONA] producer, is in a fundamentally different situation from that of the importing and exporting producers.

Accordingly, that case-law on those producers is not applicable to the present case.

20. [OSCURATO:PERSONA] therefore misapplied the case-law referred to in paragraph 65 of the judgment in Abdulrahim v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (C‑239/12 P, EU:C:2013:331), according to which an 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.

21. [OSCURATO:PERSONA] objects, primarily, that the appeal is inadmissible.

In that regard, it contends that the appeal brought by the appellant does not identify the paragraphs of the order under appeal which are challenged with the necessary detail required by [OSCURATO:PERSONA] 169(2) of the Rules of Procedure of the [OSCURATO:PERSONA].

It claims, in addition, that the appellant lacks an interest in bringing proceedings in so far as the appellant would not benefit from the annulment of the order under appeal.

Furthermore, the [OSCURATO:PERSONA] contends that the appeal is not well founded.

Findings of the [OSCURATO:PERSONA]

22. As regards the ground of inadmissibility raised by the [OSCURATO:PERSONA] based on the lack of detail in the appeal, it must be found that the appeal identifies the paragraphs of the order under appeal challenged by the single ground, namely inter alia paragraphs 44, 51, 62, 63, 67 and 68, with the necessary detail required by [OSCURATO:PERSONA] 169(2) of the Rules of Procedure of the [OSCURATO:PERSONA].

As a result, the [OSCURATO:PERSONA] is able to examine the ground of appeal.

23. As regards the ground of inadmissibility based on the appellant’s lack of an interest in bringing proceedings, as noted in the previous paragraph, since the appeal seeks the annulment of the order under appeal in so far as the [OSCURATO:PERSONA] ordered that there was no need to adjudicate on the action brought by the appellant, the appeal against that order which adversely affects it must be considered to be admissible.

24. The appeal is thus admissible. Substance

25. According to settled case-law, given the fact that the amounts lodged by way of a provisional anti-dumping duty imposed by a provisional anti-dumping regulation are to be definitively collected pursuant to a definitive regulation, no legal effect arising out of the provisional regulation may be relied on (see, to that effect, judgment in GLS , C‑338/10, EU:C:2012:158, paragraph 18 and the case-law cited).

It follows that, in the present case, after the adoption of the definitive regulation by the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], SolarWorld, in principle, no longer has an interest in contesting the regulation at issue, which was adopted on a provisional basis.

26. As regards the possibility for the appellant to obtain a declaration of nullity of the provisional regulation with a view to claiming damages on that basis, it is also clear from the case-law of the [OSCURATO:PERSONA] that the illegality of a definitive regulation could be pleaded in support of a claim for compensation for any loss caused by a provisional regulation.

In so far as the definitive regulation has replaced the provisional regulation, the legality of the provisional regulation is not capable of having any bearing on a claim for compensation (see, to that effect, judgments in Technointorg v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] , 294/86 and 77/87, EU:C:1988:470, paragraph 13, and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] , C‑305/86 and C‑160/87, EU:C:1990:295, paragraph 14).

27. On the basis of that case-law, the [OSCURATO:PERSONA] found that there was no need to adjudicate on the action in so far as it sought the annulment of the regulation at issue and compensation for the applicants at first instance on the basis of the regulation at issue.

28. The appellant submits, nevertheless, that that case-law is not relevant to the present case in so far as this case concerns the effects of the regulation at issue not on the importing or exporting producers of the products concerned, as in the cases which gave rise to that case-law, but on the [OSCURATO:PERSONA] producers who continue to have an interest in bringing proceedings.

29. In that regard, it must be held that, in paragraphs 53 and 54 of the order under appeal, the [OSCURATO:PERSONA] was fully entitled to find, and the appellant does not dispute, that the continuing existence of an interest in bringing proceedings against a provisional anti-dumping regulation depends on whether the relevant definitive regulation confirms and reproduces all of the elements, or indeed all of the contested effects, of the provisional regulation, with the result that the definitive regulation replaces the provisional regulation and that, following the entry into force of the definitive regulation, no independent legal effect of the provisional regulation remains, so that actions brought against the definitive regulation would be capable of remedying the situation of the party bringing proceedings.

30. Consequently, contrary to what SolarWorld claims, the [OSCURATO:PERSONA] considered in paragraphs 55 and 56 as well as in paragraphs 60 and 61 of the order under appeal whether, specifically as against SolarWorld, there were any autonomous or independent effects capable of being attributed solely to the regulation at issue following the entry into force of the definitive regulation and not maintained by that definitive regulation. [OSCURATO:PERSONA] found, in paragraphs 57 and 62 of the order under appeal, that, as far as the contested elements and effects of the regulation at issue are concerned, the definitive regulation replaced the regulation at issue in its entirety, so that the provisional regulation could be considered not to have caused any loss independently from that caused by the definitive regulation.

31. SolarWorld has not put forward any factors from which it could be concluded that those grounds, as adopted by the [OSCURATO:PERSONA] in the order under appeal, are vitiated by any error in law.

32. As to the remainder, the appellant has not identified any factors capable of establishing that the present case must be distinguished from those which gave rise to the case-law in paragraphs 25 and 26 above and therefore that the [OSCURATO:PERSONA] erred in law in holding that there was no longer any need to adjudicate on the action in so far as it concerned the annulment of the regulation at issue and the claim for damages.

33. Consequently, the present appeal must be rejected as manifestly unfounded. Costs

34. [OSCURATO:PERSONA] 138(1) of the Rules of Procedure of the [OSCURATO:PERSONA], which applies to appeal proceedings by virtue of [OSCURATO:PERSONA] 184(1) thereof, 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 [OSCURATO:PERSONA] has applied for costs against SolarWorld and SolarWorld has been unsuccessful, it must be ordered to pay the costs. [OSCURATO:PERSONA] part On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders:

1. The appeal is dismissed.

2. SolarWorld AG shall pay the costs.

Anonimizzato ex art. 52 D.Lgs. 196/2003
62015CO0312_EN [OSCURATO:PERSONA] part [OSCURATO:PERSONA] C‑312/15 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 24 June 2015, SolarWorld AG, established in Bonn (Germany), represented by L. Ruessmann, avocat, and J. Beck, Solicitor, appellant, the other parties to the proceedings being: [OSCURATO:SOCIETA], established in Cittaducale (Italy), applicant at first instance [OSCURATO:PERSONA], represented by J-F. Brakeland, T. [OSCURATO:PERSONA] and A. Stobiecka-Kuik, acting as Agents, with an address for service in Luxembourg, defendant at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of C. Lycourgos, President of the [OSCURATO:PERSONA], C. Vajda and K. Jürimäe (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: M. [OSCURATO:PERSONA]Bordona, Registrar: A. [OSCURATO:PERSONA], having regard to the decision taken, after hearing the [OSCURATO:PERSONA], to give a decision on the action by reasoned order, pursuant to [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, makes the following [OSCURATO:PERSONA] 1. By its appeal, SolarWorld AG (‘SolarWorld’) asks the [OSCURATO:PERSONA] to set aside the order of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 14 April 2015 in SolarWorld and [OSCURATO:SOCIETA] v [OSCURATO:PERSONA] (T‑393/13, EU:T:2015:211, ‘the order under appeal’), in so far as by that order the [OSCURATO:PERSONA] held that there was no longer any need to adjudicate on the action of SolarWorld and [OSCURATO:SOCIETA] (‘[OSCURATO:SOCIETA]’) for the annulment of [OSCURATO:PERSONA] (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 [OSCURATO:PERSONA] of [OSCURATO:PERSONA] and amending [OSCURATO:PERSONA] (EU) No 182/2013 making these imports originating in or consigned from the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] subject to registration (OJ 2013 L 152, p. 5, ‘the regulation at issue’), and for compensation on the ground of non-contractual liability of the [OSCURATO:PERSONA] for the loss which SolarWorld and [OSCURATO:SOCIETA] suffered as a result of the application, from 6 June to 5 August 2013, of the provisional anti-dumping duties at the rate imposed by the regulation at issue. Background to the proceedings and the regulation at issue 2. For the purposes of the present appeal, the background to the dispute, as set out in paragraphs 1 to 18 of the order under appeal, may be summarised as follows. 3. SolarWorld and [OSCURATO:SOCIETA] are [OSCURATO:PERSONA] producers of crystalline silicon photovoltaic modules and key components, members of EU ProSun, an association of [OSCURATO:PERSONA] producers of those products. On 25 July 2012, EU ProSun lodged a complaint with the [OSCURATO:PERSONA] with regard to dumping practices in connection with imports of such products consigned from [OSCURATO:PERSONA]. 4. On 6 September 2012, the [OSCURATO:PERSONA] published in the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] 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 the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] (OJ 2012 C 269, p. 5), in which SolarWorld cooperated. 5. On 4 June 2013, the [OSCURATO:PERSONA] adopted the regulation at issue. [OSCURATO:PERSONA] 1(2)(i) of that regulation imposed a provisional anti-dumping duty of 11.8% on imports into the [OSCURATO:PERSONA], originating in or consigned from [OSCURATO:PERSONA], of crystalline silicon photovoltaic modules or panels and cells and wafers of the type used in crystalline silicon photovoltaic modules or panels for a two-month period from 6 June to 5 August 2013. [OSCURATO:PERSONA] 1(2)(ii) of the regulation imposes a specific anti-dumping duty from 6 August to 5 December 2013 on imports of certain exporting producers listed in the same regulation, ranging from 37.3% to 67.9%. [OSCURATO:PERSONA] 1(3) of the regulation the release for free circulation in the [OSCURATO:PERSONA] of the products concerned was made subject to the provision of a security equivalent to the amount of the provisional duty. 6. On 2 August 2013, the [OSCURATO:PERSONA] adopted [OSCURATO:PERSONA] (EU) No 748/2013 amending [OSCURATO:PERSONA] (EU) No 513/2013 (OJ 2013 L 209, p. 1), following its adoption of Decision 2013/423/EU of 2 August 2013 accepting an undertaking offered in connection with the anti-dumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the [OSCURATO:PERSONA] of [OSCURATO:PERSONA] (OJ 2013 L 209, p. 26) by a group of Chinese exporting producers, listed in the annex to that decision, which had cooperated together with the [OSCURATO:PERSONA] of Commerce for Import and Export of Machinery and [OSCURATO:PERSONA]. As a result, certain imports were exempted from the provisional anti-dumping duty imposed by [OSCURATO:PERSONA] 1 of the regulation at issue. 7. Following the investigation initiated on the basis of the complaint of 25 July 2012, [OSCURATO:PERSONA] (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 [OSCURATO:PERSONA] of [OSCURATO:PERSONA] (OJ 2013 L 325, p. 1, ‘the definitive regulation’) was adopted. 8. [OSCURATO:PERSONA] 1 of the definitive regulation imposed a specific anti-dumping duty at rates ranging from 27.3% to 64.9% on the exporting producers listed in that regulation. 9. [OSCURATO:PERSONA] 2(2) of that regulation: ‘The amounts secured by way of the provisional anti-dumping duty pursuant to [OSCURATO:PERSONA] (EU) 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 and 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 the [OSCURATO:PERSONA] of [OSCURATO:PERSONA], unless they are in transit in the sense of [OSCURATO:PERSONA] V GATT, shall be definitively collected. The amounts secured in excess of the definitive rate of anti-dumping duties shall be released.’ The proceedings before the [OSCURATO:PERSONA] and the order under appeal 10. By application lodged at the Registry of the [OSCURATO:PERSONA] on 1 August 2013, SolarWorld and [OSCURATO:SOCIETA] brought an action for the annulment of the regulation at issue in so far as, pursuant to [OSCURATO:PERSONA] 1(2) of that regulation, the rate of provisional anti-dumping duties was set from 6 June to 5 August 2013 at a level which eliminated neither the dumping nor the loss caused. On the ground of non-contractual liability of the [OSCURATO:PERSONA], they also claimed compensation for the loss that they considered themselves to have suffered as a result of the application of that rate. 11. On 10 October 2014, the parties were called upon to submit their observations on a potential order that on the basis of [OSCURATO:PERSONA] 113 of the Rules of Procedure of the [OSCURATO:PERSONA] there was no need to adjudicate following the adoption of the definitive regulation. The applicants at first instance responded to the [OSCURATO:PERSONA] that it should not order that there was no need to adjudicate and should give judgment on the substantive merits of the case. 12. By the order under appeal, the [OSCURATO:PERSONA] held, in essence, that in so far as the action concerned the annulment of the regulation at issue and the claim for compensation there was no need to adjudicate on it, on the ground that, as a result of the adoption of the definitive regulation, the applicants at first instance no longer had any interest in bringing proceedings. Forms of order sought by the parties before the [OSCURATO:PERSONA] 13. SolarWorld claims that the [OSCURATO:PERSONA] should: – set aside the order under appeal in so far as the [OSCURATO:PERSONA] held that there was no longer any need to adjudicate on the action for annulment and for compensation; – declare the action in [OSCURATO:PERSONA] T‑393/13 admissible; – refer the case back to the [OSCURATO:PERSONA] for a decision on the substantive merits of the action. 14. [OSCURATO:PERSONA] claims that the [OSCURATO:PERSONA] should: – dismiss the appeal as inadmissible and, in any event, unfounded, and – order SolarWorld to pay the costs. The appeal 15. [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], decide by reasoned order to dismiss the appeal in whole or in part without opening the oral procedure. 16. It is appropriate to use that power in this case. Arguments of the parties 17. In support of its appeal, SolarWorld relies on a single ground of appeal alleging errors of law by the [OSCURATO:PERSONA] in so far as it held that there was no longer any need to adjudicate on the action for annulment of the regulation at issue and for compensation of the loss suffered. 18. It claims that the reasoning of the [OSCURATO:PERSONA] is manifestly flawed in so far as it is based on EU case-law relating to importing and exporting producers’ lack of an interest in bringing proceedings in actions brought against provisional regulations where a definitive regulation had been adopted. 19. In view of the independent effect on the [OSCURATO:PERSONA] industry of the provisional anti-dumping duty imposed by the regulation at issue, which aims to provide that industry with temporary relief for the duration of the anti-dumping proceeding from injury suffered by the industry due to dumped imports, SolarWorld, in its capacity as a [OSCURATO:PERSONA] producer, is in a fundamentally different situation from that of the importing and exporting producers. Accordingly, that case-law on those producers is not applicable to the present case. 20. [OSCURATO:PERSONA] therefore misapplied the case-law referred to in paragraph 65 of the judgment in Abdulrahim v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (C‑239/12 P, EU:C:2013:331), according to which an 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. 21. [OSCURATO:PERSONA] objects, primarily, that the appeal is inadmissible. In that regard, it contends that the appeal brought by the appellant does not identify the paragraphs of the order under appeal which are challenged with the necessary detail required by [OSCURATO:PERSONA] 169(2) of the Rules of Procedure of the [OSCURATO:PERSONA]. It claims, in addition, that the appellant lacks an interest in bringing proceedings in so far as the appellant would not benefit from the annulment of the order under appeal. Furthermore, the [OSCURATO:PERSONA] contends that the appeal is not well founded. Findings of the [OSCURATO:PERSONA] 22. As regards the ground of inadmissibility raised by the [OSCURATO:PERSONA] based on the lack of detail in the appeal, it must be found that the appeal identifies the paragraphs of the order under appeal challenged by the single ground, namely inter alia paragraphs 44, 51, 62, 63, 67 and 68, with the necessary detail required by [OSCURATO:PERSONA] 169(2) of the Rules of Procedure of the [OSCURATO:PERSONA]. As a result, the [OSCURATO:PERSONA] is able to examine the ground of appeal. 23. As regards the ground of inadmissibility based on the appellant’s lack of an interest in bringing proceedings, as noted in the previous paragraph, since the appeal seeks the annulment of the order under appeal in so far as the [OSCURATO:PERSONA] ordered that there was no need to adjudicate on the action brought by the appellant, the appeal against that order which adversely affects it must be considered to be admissible. 24. The appeal is thus admissible. Substance 25. According to settled case-law, given the fact that the amounts lodged by way of a provisional anti-dumping duty imposed by a provisional anti-dumping regulation are to be definitively collected pursuant to a definitive regulation, no legal effect arising out of the provisional regulation may be relied on (see, to that effect, judgment in GLS , C‑338/10, EU:C:2012:158, paragraph 18 and the case-law cited). It follows that, in the present case, after the adoption of the definitive regulation by the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], SolarWorld, in principle, no longer has an interest in contesting the regulation at issue, which was adopted on a provisional basis. 26. As regards the possibility for the appellant to obtain a declaration of nullity of the provisional regulation with a view to claiming damages on that basis, it is also clear from the case-law of the [OSCURATO:PERSONA] that the illegality of a definitive regulation could be pleaded in support of a claim for compensation for any loss caused by a provisional regulation. In so far as the definitive regulation has replaced the provisional regulation, the legality of the provisional regulation is not capable of having any bearing on a claim for compensation (see, to that effect, judgments in Technointorg v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] , 294/86 and 77/87, EU:C:1988:470, paragraph 13, and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] and [OSCURATO:PERSONA] , C‑305/86 and C‑160/87, EU:C:1990:295, paragraph 14). 27. On the basis of that case-law, the [OSCURATO:PERSONA] found that there was no need to adjudicate on the action in so far as it sought the annulment of the regulation at issue and compensation for the applicants at first instance on the basis of the regulation at issue. 28. The appellant submits, nevertheless, that that case-law is not relevant to the present case in so far as this case concerns the effects of the regulation at issue not on the importing or exporting producers of the products concerned, as in the cases which gave rise to that case-law, but on the [OSCURATO:PERSONA] producers who continue to have an interest in bringing proceedings. 29. In that regard, it must be held that, in paragraphs 53 and 54 of the order under appeal, the [OSCURATO:PERSONA] was fully entitled to find, and the appellant does not dispute, that the continuing existence of an interest in bringing proceedings against a provisional anti-dumping regulation depends on whether the relevant definitive regulation confirms and reproduces all of the elements, or indeed all of the contested effects, of the provisional regulation, with the result that the definitive regulation replaces the provisional regulation and that, following the entry into force of the definitive regulation, no independent legal effect of the provisional regulation remains, so that actions brought against the definitive regulation would be capable of remedying the situation of the party bringing proceedings. 30. Consequently, contrary to what SolarWorld claims, the [OSCURATO:PERSONA] considered in paragraphs 55 and 56 as well as in paragraphs 60 and 61 of the order under appeal whether, specifically as against SolarWorld, there were any autonomous or independent effects capable of being attributed solely to the regulation at issue following the entry into force of the definitive regulation and not maintained by that definitive regulation. [OSCURATO:PERSONA] found, in paragraphs 57 and 62 of the order under appeal, that, as far as the contested elements and effects of the regulation at issue are concerned, the definitive regulation replaced the regulation at issue in its entirety, so that the provisional regulation could be considered not to have caused any loss independently from that caused by the definitive regulation. 31. SolarWorld has not put forward any factors from which it could be concluded that those grounds, as adopted by the [OSCURATO:PERSONA] in the order under appeal, are vitiated by any error in law. 32. As to the remainder, the appellant has not identified any factors capable of establishing that the present case must be distinguished from those which gave rise to the case-law in paragraphs 25 and 26 above and therefore that the [OSCURATO:PERSONA] erred in law in holding that there was no longer any need to adjudicate on the action in so far as it concerned the annulment of the regulation at issue and the claim for damages. 33. Consequently, the present appeal must be rejected as manifestly unfounded. Costs 34. [OSCURATO:PERSONA] 138(1) of the Rules of Procedure of the [OSCURATO:PERSONA], which applies to appeal proceedings by virtue of [OSCURATO:PERSONA] 184(1) thereof, 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 [OSCURATO:PERSONA] has applied for costs against SolarWorld and SolarWorld has been unsuccessful, it must be ordered to pay the costs. [OSCURATO:PERSONA] part On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed. 2. SolarWorld AG shall pay the costs.
Sentenza Corte di giustizia UE n. 513/2016 — Fons Iuris — Fons Iuris