Court of Justice of the European Communities (including Court of First Instance Decisions)

ORDER OF THE PRESIDENT OF THE GENERAL COURT

23 May 2014 (*)

(Application for interim measures - Subsidies - Imports of crystalline silicon photovoltaic modules and key components (cells) originating or consigned from China - Definitive countervailing duty - Application for suspension of operation of a measure - No urgency)

In Case T-142/14 R,

SolarWorld AG, established in Bonn (Germany),

Brandoni solare SpA, established in Castelfidardo (Italy),

Solaria Energia y Medio Ambiente, SA, established in Madrid (Spain),

represented by L. Ruessmann, lawyer, and J. Beck, Solicitor,

applicants,

v

Council of the European Union, represented by B. Driessen, acting as Agent,

defendant,

APPLICATION for suspension of operation of Article 2 of Council Implementing Regulation (EU) No 1239/2013 of 2 December 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 2013 L 325, p. 66),

THE PRESIDENT OF THE GENERAL COURT

makes the following

Order

 Background to the dispute

1        The applicants, SolarWorld AG, Brandoni solare SpA and Solaria Energia y Medio Ambiente, SA, are Union producers of crystalline silicon photovoltaic modules and key components (‘the product concerned’).

2        Following a complaint lodged by EU ProSun on behalf of producers representing more than 25% of the total EU production of the product concerned, on 8 November 2012, by notice published in the Official Journal of the European Union (OJ 2012 C 340, p. 13), the European Commission announced the opening of anti-subsidy proceedings concerning imports into the European Union of the product concerned originating from China.

3        In the course of anti-dumping proceedings being conducted at the same time, 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) (‘the provisional anti-dumping regulation’) was adopted.

4        Following the adoption of the provisional anti-dumping regulation, a group of exporting producers, including their affiliated companies established in China and the European Union, worked together in collaboration with the Chinese Chamber of Commerce for the import and export of electronic machinery and equipment and made a joint price undertaking offer pursuant to Article 8(1) 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 undertaking offer was also supported by the Chinese authorities. That offer was accepted by Commission 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 People’s Republic of China (OJ 2013 L 209, p. 26). By an application lodged at the Registry of the General Court on 23 September 2013, the applicants brought an action against that contested decision, which was registered under reference T-507/13.

5        The same group of producers, working together with the Chinese Chamber of Commerce for the import and export of electronic machinery and equipment, requested the Commission to accept the undertaking conditions with a view also to eliminating any harmful effect of the subsidised imports. Commission Implementing Decision No 2013/707/EU of 4 December 2013 confirming the acceptance of an undertaking offered in connection with the anti-dumping and countervailing 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) (‘the implementing decision’) confirmed acceptance of the undertaking, as amended, including with regard to subsidies. By document lodged at the Court Registry on 11 December 2013, the applicants amended their initial forms of order sought in Case T-507/13 to include also annulment of the implementing decision.

6        Council Implementing Regulation (EU) No 1239/2013 of 2 December 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 2013 L 325, p. 66) (‘the contested regulation’) introduced definitive countervailing measures in order to prevent the EU industry from continuing to suffer harm due to the subsidised imports. Article 2 of the contested regulation exempts Chinese exporting producers listed in the annex to the implementing decision from the payment of anti-subsidy duties.

7        At the same time, on 5 December 2013 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 anti-dumping regulation’) confirmed, in all essential respects, the Commission’s findings set out in the provisional anti-dumping regulation. Article 3 of the definitive anti-dumping regulation exempts Chinese exporting producers listed in the annex to the implementing decision from the payment of anti-dumping duties. By an application lodged at the Court Registry on 28 February 2014, the applicants brought an action for partial annulment of the definitive anti-dumping regulation, which was registered under reference T-141/14. By separate document lodged at the Court Registry on 31 March 2014, registered under reference T-141/14 R, the applicants also lodged an application for interim measures in which they request, in essence, the President of the Court to order suspension of operation of Article 3 of the definitive anti-dumping regulation until a final decision is given in the main proceedings.

 Procedure and forms of order sought

8        By application lodged at the Registry of the General Court on 28 February 2014, the applicants brought an action for the partial annulment of the contested regulation. In support of their action, they submit in essence, by way of principal argument, that Article 2 of the contested regulation was adopted contrary to Article 13 of Council Regulation (EC) No 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-subsidies regulation’) in so far as it exempts from the anti-subsidy duties those Chinese producers in respect of whom the Commission accepted a joint undertaking, whereas Article 13 of the basic anti-subsidies regulation allows the Commission to accept price undertakings from individual exporting producers. They submit, in the alternative, that negotiation of such a joint undertaking entails an even greater level of duty of care and information for the institutions, which was not observed in the present case. They submit, secondly, that the contested regulation infringes Article 13 of the basic anti-subsidies regulation on the ground that Chinese producers are exempt from anti-subsidy duties on the basis of an unlawful joint undertaking agreement. The agreement is unlawful because it fixed minimum import prices at a level which did not offset the harm caused by the subsidised imports. It was also - without justification - based on information subsequent to the investigation period and on the incorrect finding that the combination of minimum import prices subsequent to the investigation period and annual import levels would eliminate the harmful effects of the subsidies. Thirdly, they submit that Article 2 of the contested regulation infringes Article 101(1) TFEU in so far as it grants certain Chinese producers an exemption from measures to protect trade on the basis of an undertaking offer, accepted and confirmed by Commission decisions, which amounts to a horizontal pricing agreement.

9        By a separate document, lodged at the Court Registry on 31 March 2014, the applicants brought the present application for interim measures, in which they claim, in essence, that the President of the General Court should:

-        order the suspension of operation of Article 2 of the contested regulation until the Court has given judgment on the merits;

-        order the Council of the European Union to pay the costs.

10      In its observations on the application for interim measures, lodged at the Court Registry on 11 April 2014, the Council contends that the President of the General Court should:

-        declare the application for interim measures inadmissible;

-        in the alternative, dismiss it as unfounded;

-        order the applicants to pay the costs.

11      By a document lodged at the Court Registry on 11 April 2014, the Commission sought leave to intervene in support of the form of order sought by the Council.

 Law

12      Having regard to the material in the case-file, the judge hearing the application considers that he has all the information needed to rule on the present application for interim measures without there being any need first to hear oral argument from the parties.

13      Under the combined provisions of Articles 278 TFEU and 279 TFEU, on the one hand, and Article 256(1) TFEU, on the other, the judge hearing the application for interim relief may, if he considers that the circumstances so require, order the suspension of operation of an act challenged or prescribe any necessary interim measures. Nevertheless, Article 278 TFEU establishes the principle that actions do not have suspensory effect, since acts adopted by the institutions of the Union are presumed to be lawful. It is therefore only exceptionally that the judge hearing an application for interim relief may order the suspension of operation of an act challenged before the General Court or prescribe any interim measures necessary (see the order of the President of the General Court of 17 January 2013 in Case T-507/12 R Slovenia v Commission, not published in the ECR, paragraph 6).

14      In addition, Article 104(2) of the Rules of Procedure of the General Court provides that applications for interim measures must state the subject-matter of the proceedings, the circumstances giving rise to urgency and the pleas of fact and law establishing a prima facie case for the interim measures applied for. Thus, the judge hearing an application for interim relief may order suspension of operation of an act, or other interim measures, if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable harm to the interests of the party applying for the measures, it must be made and produce its effects before a decision is reached in the main action (order of the President of the Court of Justice of 19 July 1995 in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I-2165, paragraph 22). Those conditions are cumulative, so that an application for interim measures must be dismissed if either of them is absent (order of the President of the Court of Justice of 14 October 1996 in Case C-268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30).

15      In the context of that overall examination, the judge hearing the application enjoys a broad discretion and is free to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions are to be examined, there being no rule of law imposing a pre-established scheme of analysis within which the need to order interim measures must be assessed (orders of the President of the Court of Justice in Commission v Atlantic Container Line and Others, paragraph 23, and of 3 April 2007 in Case C-459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25).

16      In the present case, without its being necessary to rule on the pleas of inadmissibility put forward by the Council, it is appropriate to begin by examining whether the requirement of urgency is fulfilled.

17      In that respect, it must be noted that the purpose of interim proceedings is to guarantee the full effectiveness of the final future decision in order to ensure that there is no lacuna in the legal protection provided by the Court of Justice. It is for the purpose of attaining that objective that urgency must be assessed in the light of the need for an interim order in order to avoid serious and irreparable harm to the party seeking the interim relief (order of the President of the Court of Justice of 17 July 2001 in Case C-180/01 P-R Commission v NALOO [2001] ECR I-5737, paragraph 52). It is for that party to prove that it cannot wait for the outcome of the main proceedings without suffering damage of that nature (order of the President of the Court of Justice of 25 July 2000 in Case C-377/98 R Netherlands v Parliament and Council [2000] ECR I-6229, paragraph 50).

18      Although in order to establish the existence of serious and irreparable damage it is not necessary for the occurrence of the damage to be demonstrated with absolute certainty, it being sufficient to show that damage is foreseeable with a sufficient degree of probability, the party seeking an interim measure is nevertheless required to prove the facts forming the basis of its claim that serious and irreparable damage is likely (order of the President of the Court of Justice of 14 December 1999 in Case C-335/99 P(R) HFB and Others v Commission [1999] ECR I-8705, paragraph 67).

19      In the present case, the applicants argue that there is a particular urgency to suspend the application of Article 2 of the contested regulation, since otherwise their freedom to conduct a business, enshrined in Article 16 of the Charter of Fundamental Rights of the European Union, and their right to an effective judicial remedy, enshrined in Article 47 of the Charter of Fundamental Rights, would suffer serious and irreparable harm. The applicants rely in this regard on the orders of the President of the General Court of 11 March 2013 in Case T-462/12 R Pilkington Group v Commission [2013] ECR, and of 25 April 2013 in Case T-73/13 R InterMune UK and Others v EMA, not published in the ECR, in which it was held that, at least since the entry into force of the Treaty of Lisbon, which raised the Charter of Fundamental Rights to the level of primary EU law and provides that it is to have the same legal value as the Treaties, an imminent risk of a serious and irreparable breach of fundamental rights has had to be regarded, in itself, as harm justifying the grant of the interim protection requested.

20      It is clear, however, that, when he heard the orders in the aforementioned Pilkington Group v Commission and InterMune UK and Others v EMA on appeal, the Vice-President of the Court of Justice, referring to the case-law and, in particular, the order of the President of the Court of Justice of 15 April 1998 in Case C-43/98 P(R) Camar v Commission and Council [1998] ECR I-1815, held that it is not sufficient to allege infringement of fundamental rights in the abstract for the purpose of establishing that the harm which could result would necessarily be irreparable. That case-law is not called into question by the enhanced protection of fundamental rights brought about by the Treaty of Lisbon, since those rights, in particular the rights invoked in the present case, already enjoyed protection under EU law before the entry into force of that treaty (orders of the Vice-President of the Court of Justice of 10 September 2013 in Case C-278/13 P(R) Commission v Pilkington Group [2013] ECR, paragraph 40, and of 28 November 2013 in Case C-390/13 P(R) EMA v InterMune UK and Others [2013] ECR, paragraph 42).

21      It is true that breach of certain fundamental rights, such as the prohibition of torture and inhuman or degrading treatment or punishment enshrined in Article 4 of the Charter of Fundamental Rights, may, on account of the very nature of the right infringed, in itself give rise to serious and irreparable harm. However, the fact remains that, in accordance with the case-law cited at paragraphs 17 and 18 above, it remains for the party seeking interim measures to set out and establish the likelihood of such harm occurring in his particular case (orders in Commission v Pilkington Group, paragraph 41, and EMA v InterMune UK and Others, paragraph 43).

22      In the present case, the applicants seek an order for interim measures in order to prevent their freedom to conduct a business from being undermined. Yet that freedom could be undermined in such a way as to cause serious and irreparable harm only in certain circumstances, depending, inter alia, on the extent to which it was undermined and the particularities of the undertaking’s field of endeavour. Moreover, it must be emphasised that this freedom is not absolute, but must be viewed in relation to its function in society. Restrictions may be imposed on that freedom, provided that they pursue objectives of general interest and are not, in the light of the objective pursued, a disproportionate and intolerable encroachment which undermines the very essence of the freedom guaranteed thereby (Case 4/73 Nold v Commission [1974] ECR 491, paragraph 14).

23      Consequently, any infringement by Article 2 of the contested regulation of the freedom to conduct a business, enshrined in Article 16 of the Charter of Fundamental Rights, is not in itself sufficient to establish that there is a likelihood of serious and irreparable harm occurring in the circumstances of the present case. The applicant’s argument in this respect must therefore be rejected.

24      The applicants further allege that, if the operation of Article 2 of the contested regulation is not suspended, their right to an effective judicial remedy against infringement of their freedom to conduct a business will be undermined, for the entire duration of the main proceedings. They argue, in particular, that, even in the event of annulment ex tunc of Article 2 of the contested regulation, it will have had its full effect throughout the period of application and it will be impossible to remedy the harm caused to the applicants’ fundamental rights as a result of the application of those measures while the dispute has been pending.

25      Suffice it to observe, however, that the formal and substantive conditions for interim measures to be ordered by the European Union judicature, particularly those relating to the presence of serious and irreparable harm, cannot in themselves be regarded as an infringement of the right to an effective remedy within the meaning of Article 47 of the Charter of Fundamental Rights (see, to that effect, orders of the President of the General Court of 9 June 2011 in Case T-62/06 RENV-R Eurallumina v Commission, not published in the ECR, paragraph 51, and of 10 June 2011 in Case T-207/07 R Eurallumina v Commission, not published in the ECR, paragraph 54). The fact that the applicants are likely to suffer harm which does not fulfil the conditions for having the measures sought granted is therefore not such as to infringe their right to an effective remedy. Consequently, the applicants’ argument must be rejected.

26      Lastly, the applicants put forward certain other arguments with a view to establishing the required urgency and thereby the well-foundedness of their application for interim measures.

27      The applicants argue, first of all, that Article 2 of the contested regulation, in abolishing anti-dumping duties for certain undertakings, will force Union producers to reduce their production or close their plants. They further argue that the adjustment mechanism of minimum import prices provided for thereunder will eventually lead to a rapid and total elimination of the remaining Union producers of the product concerned. In support of those assertions, the applicants have produced a list of European Union companies in the photovoltaic solar energy sector which, since the investigation period, have gone bankrupt or have totally or partially ceased operations in the photovoltaic solar energy sector, by ceasing production or transferring their operations relating to the product concerned.

28      It is settled case-law that the urgency of an application for interim measures must be assessed in relation to the necessity for an interim order to prevent serious and irreparable harm to the party applying for interim measures. In order to establish the urgency of its application, that party may rely only on its own interests (order of the President of the Court of Justice of 4 May 1964 in Case 12/64 Ley v Commission of the EEC [1965] ECR 132, 133, and order of the President of the General Court of 2 October 1997 in Case T-213/97 R Eurocoton and Others v Council [1997] ECR II-1609, paragraphs 43 and 46). Accordingly, the arguments put forward by the applicants about the effects of the contested regulation on the situation of third-party undertakings are ineffective and must be rejected.

29      Secondly, the applicants argue that they will cease to exist due to the material loss arising from dumped or subsidised imports. In that regard they rely, first, on the assertion that, since the adoption of Decision 2013/423, which ought to have eliminated the harmful effects of the subsidies, major Union producers have become insolvent or have ceased production entirely in the EU. Next, they rely on the fact that one of the applicants, Solaria Energia y Medio Ambiente, had to close a production unit in Spain and dismiss all of its employees in mid-February 2014 due to losses sustained in 2012 and 2013 as a result of unfair imports from China and the lack of corrective measures, which ought to have been put in place by Article 2 of the contested regulation.

30      In that regard it should be borne in mind that although damage of a pecuniary nature cannot, otherwise than in exceptional circumstances, be regarded as irreparable since, as a general rule, pecuniary compensation is capable of restoring the aggrieved person to the situation that obtained before he suffered the damage (order of the President of the Court of Justice of 18 October 1991 in Case C-213/91 R Abertal and Others v Commission [1991] ECR I-5109, paragraph 24), an interim measure is nevertheless justified if it appears that, if the measure is not granted, the very existence of the party seeking it will be threatened before final judgment in the main proceedings is given (order of the President of the Court of Justice of 23 May 1990 in Joined Cases C-51/90 R and C-59/90 R Comos-Tank and Others v Commission [1990] ECR I-2167, paragraph 24).

31      However, in order to determine whether the harm alleged is serious and irreparable, the judge hearing the application for interim measures must have actual and specific information, supported by detailed, certified documentary evidence showing the financial situation of the party seeking interim measures and enabling an assessment of the consequences if the measures sought are not granted. It follows that that party must produce, with supporting documentation, an accurate overall picture of its financial situation (see, to that effect, orders of the President of the Court of Justice of 20 April 2012 in Case C-507/11 P(R) Fabricela v Commission, not published in the ECR, paragraph 35, and of the President of the General Court of 27 April 2010 in Case T-103/10 P(R) Parliament v U, not published in the ECR, paragraphs 37 and 39).

32      The vague and cursory statements put forward by the applicants and the documentary evidence adduced, consisting in a six-line article taken from an online information bulletin, are not sufficient to establish that immediate implementation of the contested regulation would threaten their financial viability before final judgment is given in the main proceedings. The applicants have not provided the slightest specific information to enable a genuine determination to be made as to their financial situation or the effect the contested regulation might have on it, so as to permit a prognosis to be made of their prospects for survival until judgment is given in the main proceedings. Accordingly, the applicants’ argument alleging a threat to their existence must be rejected.

33      It follows that the applicants have not demonstrated that they will suffer serious and irreparable harm if the application for suspension of operation is not granted.

34      In the light of all the foregoing, the application for interim measures must be dismissed for want of urgency, without there being any need to examine whether the other conditions for granting the measures sought for suspension of operation are satisfied, or to rule on the Commission’s application for leave to intervene.

On those grounds,

THE PRESIDENT OF THE GENERAL COURT

hereby orders:

1.      The application for interim measures is dismissed.

2.      Costs are reserved.

Luxembourg, 23 May 2014.

* Language of the case: English.