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

ORDER OF THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT

28 July 2021 (*)

(Intervention – Interest in the result of the case – Request for confidentiality)

In Case T‑763/20,

Inner Mongolia Shuangxin Environment-Friendly Material Co. Ltd, established in Ordos City (China), represented by J. Cornelis, F. Graafsma and E. Vermulst, lawyers,

applicant,

supported by

Wegochem Europe B.V., established in Oosterhout (Netherlands), represented by R. Antonini, E. Monard and B. Maniatis, lawyers,

v

European Commission, represented by K. Blanck, M. Gustafsson and G. Luengo, acting as Agents,

defendant,

supported by

European Parliament, represented by A. Neergaard, D. Moore and A. Pospíšilová Padowska, acting as Agents,

by

Council of the European Union, represented by H. Marcos Fraile and B. Driessen, acting as Agents, and by N. Tuominen, lawyer,

and by

Kuraray Europe GmbH, established in Hattersheim am Main (Germany), represented by R. MacLean, lawyer,

interveners,

APPLICATION under Article 263 TFEU for annulment of Commission Implementing Regulation (EU) 2020/1336 of 25 September 2020 imposing definitive anti-dumping duties on imports of certain polyvinyl alcohols originating in the People’s Republic of China (OJ 2020 L 315, p. 1),

THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT

makes the following

Order

 Facts and procedure

1        On 25 September 2020, the European Commission adopted Implementing Regulation (EU) 2020/1336 imposing definitive anti-dumping duties on imports of certain polyvinyl alcohols originating in the People’s Republic of China (OJ 2020 L 315, p. 1) (‘the contested Regulation’).

2        By application lodged at the Court Registry on 23 December 2020, the applicant, Inner Mongolia Shuangxin Environment-Friendly Material Co. Ltd, brought an action for annulment of the contested Regulation.

3        On 15 February 2021, pursuant to Article 79 of the Rules of Procedure of the General Court, a notice relating to the lodging of that application was published in the Official Journal of the European Union (OJ 2021 C 53, p. 65).

4        By document lodged at the Court Registry on 6 April 2021, Sekisui Specialty Chemicals Europe S.L. applied for leave to intervene in the present proceedings in support of the form of order sought by the Commission.

5        The application to intervene was served on the main parties in accordance with Article 144(1) of the Rules of Procedure.

6        By a document lodged at the Registry of the General Court on 3 May 2021, the applicant opposed Sekisui Specialty Chemicals Europe’s application to intervene. On the same date, it requested that certain confidential data be excluded from the procedural documents to be notified to Sekisui Specialty Chemicals Europe.

7        The Commission did not submit observations on Sekisui Specialty Chemicals Europe’s application to intervene within the period given it for that purpose.

 Law

8        Pursuant to Article 144(5) of the Rules of Procedure, where an application to intervene is made on a legal basis other than the first paragraph of Article 40 of the Statute of the Court of Justice of the European Union, the President is to rule as soon as possible by order on the application to intervene and, where appropriate, on the disclosure to the intervener of information which it is claimed is confidential.

 The application to intervene

9        It follows from the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court pursuant to the first paragraph of Article 53 thereof, that any person establishing an interest in the result of a case, other than a dispute between Member States, between EU institutions or between Member States and EU institutions, may intervene in that case.

10      The concept of ‘interest in the result of a case’, within the meaning of the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union, must be defined in the light of the subject matter of the case and be understood as meaning a direct, existing interest in the ruling on the form of order sought, and not as an interest in relation to the pleas in law or arguments put forward. The words ‘result of a case’ refer to the final decision sought, as set out in the operative part of the future judgment. Thus, in proceedings concerning an application for annulment, a person must be regarded as having established an interest in the result of the case, and therefore as having the right to intervene in the case, if that person establishes a direct, existing interest in the grant of the form of order sought by the party in support of which it seeks to intervene and, accordingly, in the ruling on the contested measure (see order of 10 November 2020, Nevinnomysskiy Azot and NAK ‘Azot’ v Commission, T‑865/19, not published, EU:T:2020:570, paragraph 18 and the case-law cited).

11      It should be noted that the question whether a person has an interest in the result of the case for the purpose of being granted leave to intervene under the second paragraph of Article 40 of the Statute of the Court of Justice of the European Union is different from the question whether a person has standing as an applicant for the purpose of the fourth paragraph of Article 263 TFEU (see, to that effect, order of 10 November 2020, Nevinnomysskiy Azot and NAK ‘Azot’ v Commission, T‑865/19, not published, EU:T:2020:570, paragraph 19 and the case-law cited).

12      In order to rule on an application to intervene opposed by one of the main parties, it must, in particular, be ascertained whether the party applying for leave to intervene is directly affected by the contested measure and whether that party’s interest in the result of the case is established (see order of 10 November 2020, Nevinnomysskiy Azot and NAK ‘Azot’ v Commission, T‑865/19, not published, EU:T:2020:570, paragraph 20 and the case-law cited).

13      In support of its application to intervene, first, Sekisui Specialty Chemicals Europe points out that it is one of the four producers of polyvinyl alcohols established in the European Union and is therefore part of the EU industry within the meaning of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21) (‘the basic Regulation’). The contested Regulation imposed definitive anti-dumping duties on imports of certain polyvinyl alcohols originating in China specifically because of the injury that they caused to that industry. Since 30 September 2020, the date on which that regulation entered into force, the position of producers of polyvinyl alcohols established in the European Union has undergone significant changes. In particular, Sekisui Specialty Chemicals Europe has increased its production by 25%.

14      Second, Sekisui Specialty Chemicals Europe points out that it participated actively in the administrative procedure at the conclusion of which the Commission adopted the contested Regulation.

15      The applicant replies that Sekisui Specialty Chemicals Europe’s application to intervene is essentially based on its participation in the administrative procedure conducted by the Commission. However, it submits, that participation was merely passive. In fact, it argues, in its reply to the questionnaire sent by the Commission, Sekisui Specialty Chemicals Europe confined itself to providing general information relating to macroeconomic indicators.

16      In addition, the applicant submits that Sekisui Specialty Chemicals Europe has not supported its application to intervene by adducing evidence in the proceedings which would make it possible to verify the reality of the increase in production which it claims.

17      Furthermore, the applicant argues, since the group to which Sekisui Specialty Chemicals Europe belongs produces polyvinyl alcohols not only in the European Union but also in many third countries other than the People’s Republic of China, it is not possible to establish whether, by supporting the form of order sought by the Commission in the present case, Sekisui Specialty Chemicals Europe is seeking to protect the EU industry or rather its imports into the European Union of polyvinyl alcohols produced outside the European Union by other companies in that group.

18      In that regard, it has already been held that, in the anti-dumping sector, it cannot seriously be disputed that undertakings which were deemed by the Commission to be part of the EU industry taken into consideration in the regulation imposing definitive anti-dumping duties and which actively participated in the administrative procedure which culminated in the adoption of that regulation have an interest in the result of the case. Since that regulation was adopted further to the finding of injury to the EU industry, it must be held that those undertakings may be affected by the possible annulment of the regulation at issue (see order of 13 July 2012, PT Musim Mas v Council, T‑26/12, not published, EU:T:2012:387, paragraph 7 and the case-law cited).

19      However, the admission of an applicant to intervene is not conditional on that person’s participation in the administrative procedure which preceded the adoption of the contested act (see orders of 11 July 2012, Bricmate v Council, T‑596/11, not published, EU:T:2012:364, paragraph 14, and of 11 February 2014, Photo USA Electronic Graphic v Council, T‑394/13, not published, EU:T:2014:102, paragraph 9 and the case-law cited). Consequently, an undertaking which is part of the EU industry taken into consideration in a regulation imposing definitive anti-dumping duties has an interest in the outcome of a dispute which may lead to the annulment of that regulation, irrespective of whether or not it actively participated in the administrative procedure (see, to that effect, orders of 11 February 2014, Photo USA Electronic Graphic v Council, T‑394/13, not published, EU:T:2014:102, paragraphs 10 and 11, and of 16 July 2014, Chin Haur Indonesia v Council, T‑412/13, not published, EU:T:2014:707, paragraph 13).

20      In the present case, it follows from recitals 24, 25 and 29 of the contested Regulation that, although the Commission had initially stated that it had provisionally selected a sample, within the meaning of Article 17 of the basic Regulation, consisting of three EU producers, including Sekisui Specialty Chemicals Europe, it subsequently withdrew the latter from that sample. The Commission noted that that company’s reply to its questionnaire ‘only included information with respect to macro-indicators, which was insufficient for the purposes of the investigation’ (recital 29).

21      However, despite the exclusion of Sekisui Specialty Chemicals Europe from the sample, in recital 398 of the contested Regulation the Commission noted the following:

‘The like product was manufactured by four Union producers during the investigation period: Kuraray Europe GmbH; Sekisui Specialty Chemicals Europe S.L., Solutia Europe SPRL, Wacker Chemie AG. They constitute the “Union industry” within the meaning of Article 4(1) of the basic Regulation.’

22      It must therefore be found that Sekisui Specialty Chemicals Europe is part of the EU industry. Furthermore, it follows from recitals 25 and 30 of the contested Regulation that Sekisui Specialty Chemicals Europe’s contribution to the estimated total EU production of the like product amounts to approximately 10% thereof, since the Commission found that the representativeness of the sample had fallen from more than 90% to more than 80% after Sekisui Specialty Chemicals Europe had been excluded from the sample. Thus, it is irrelevant that it is part of a group that also produces polyvinyl alcohols outside the European Union.

23      According to the case-law, in the event that a regulation imposing anti-dumping duties on imports of certain products is annulled, the conditions of competition between the EU industry producing like products and the exporting producers affected by those anti-dumping duties would be affected (see, to that effect and by analogy, order of 8 May 2019, Changmao Biochemical Engineering v Commission, T‑541/18, not published, EU:T:2019:317, paragraph 25 and the case-law cited).

24      In view of the foregoing, it must be found that Sekisui Specialty Chemicals Europe has an interest in the result of the case, irrespective of the extent of its participation in the procedure conducted before the Commission.

25      In any event, it should be recalled that in recital 441 of the contested Regulation the Commission states that ‘for the injury determination, [it] distinguished between macroeconomic and microeconomic injury indicators’, that it ‘evaluated the macroeconomic indicators on the basis of data provided by the complainant, cross-checked with the data provided by the other Union producers, users and importers …’ and that ‘the macroeconomic data related to all Union producers’.

26      In section 4.5.2 of the contested Regulation, the Commission examined the macroeconomic indicators. In section 4.5.3 of the same regulation, it examined the microeconomic indicators. After having analysed all of those indicators, the Commission noted in section 4.5.4 of the contested Regulation that ‘all main injury indicators [had shown] a negative trend during the period considered’ (recital 472) and, ‘on the basis of the above, [it] concluded that the Union industry [had] suffered material injury within the meaning of Article 3(5) of the basic Regulation’ (recital 478).

27      Furthermore, it follows from recitals 667 to 670 of the contested Regulation that Sekisui Specialty Chemicals Europe was provided by the Commission on 3 July 2020 with the final information provided for in Article 20 of the basic Regulation and, on 24 July 2020 and 6 August 2020, with additional facts and further details. Sekisui Specialty Chemicals Europe submitted written comments to the Commission and, at its request, participated in hearings before the Commission on two occasions.

28      In recital 671 of the contested Regulation, the Commission notes that ‘the comments submitted by interested parties were duly considered, and, where appropriate, the findings have been modified accordingly’.

29      In view of those factors, it should be noted that, contrary to what the applicant claims, Sekisui Specialty Chemicals Europe participated actively in the procedure before the Commission, although it provided it with less data than other interested parties.

30      It follows that Sekisui Specialty Chemicals Europe has an interest in the result of the case.

31      Sekisui Specialty Chemicals Europe must therefore be granted the right to intervene in the present case in support of the form of order sought by the Commission.

 The request for confidential treatment

32      In accordance with Article 144(2), (5) and (7) of the Rules of Procedure, the applicant has requested that certain confidential information in the file be excluded from the communication to Sekisui Specialty Chemicals Europe of the documents served on the main parties and, for the purposes of that communication, it produced a non-confidential version of the procedural documents concerned.

33      At the present stage, only a non-confidential version of the documents served, and, where applicable, to be served on the main parties must therefore be communicated to Sekisui Specialty Chemicals Europe. A decision on the merits of the request for confidential treatment will, if necessary, be taken at a later stage in the light of any objections which might be submitted on that issue.

On those grounds,

THE PRESIDENT OF THE SEVENTH CHAMBER OF THE GENERAL COURT

hereby orders:

1.      Sekisui Specialty Chemicals Europe S.L. is granted leave to intervene in Case T‑763/20 in support of the form of order sought by the European Commission.

2.      The Registrar shall communicate to Sekisui Specialty Chemicals Europe a non-confidential version of each of the procedural documents served on the parties.

3.      A period shall be set within which Sekisui Specialty Chemicals Europe may lodge any observations which it may have on the request for confidential treatment submitted by Inner Mongolia Shuangxin Environment-Friendly Material Co. Ltd. The decision on the merits of that request is reserved.

4.      A period shall be set within which Sekisui Specialty Chemicals Europe may submit a statement in intervention, without prejudice to the possibility of supplementing it later if necessary, further to a decision on the merits of the request for confidential treatment.

5.      The costs are reserved.

Luxembourg, 28 July 2021.

*      Language of the case: English.

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