18 May 2011 (*1)

(Appeal –Interim proceedings – Application for interim measures – Suspensory effect of an appeal against a judgment of the General Court – Dumping – Imports of glyphosate originating in China – Review procedure– No need to adjudicate)

In Case C‑337/09 P-R

APPLICATION for interim measures under Article 279 TFEU and as appropriate Article 60 of the Statute of the Court of Justice of the European Union lodged on 30 December 2009

Council of the European Union represented by J.-P. Hix acting as Agent

appellant

the other parties to the proceedings being:

applicant at first instance and in these proceedings

Commission of the European Communities represented by T. Scharf and N. Khan acting as Agents with an address for service in Luxembourg

Association des utilisateurs and distributeurs de l’agrochimie européenne (Audace) represented by J. Flynn QC

interveners at first instance

after hearing the Advocate General J. Kokott

makes the following

1By an appeal lodged on 17 August 2009 the Council of the European Union sought to have set aside the judgment of the Court of First Instance of the European Communities (now ‘the General Court’) in Case T‑498/04 Zhejiang Xinan Chemical Industrial Group v Council [2009] ECR II‑1969 (‘the judgment under appeal’) by which the General Court annulled Article 1 of Council Regulation (EC) No 1683/2004 of 24 September 2004 imposing a definitive anti‑dumping duty on imports of glyphosate originating in the People’s Republic of China (OJ 2004 L 303 p. 1) (‘the contested regulation’) in so far as it concerns Zhejiang Xinan Chemical Industrial Group Co. Ltd.

2By application lodged at the Registry of the Court on 30 December 2009 Zhejiang Xinan Chemical Industrial Group Co. Ltd (‘Zhejiang Xinan’) lodged an application for interim measures pursuant to Article 279 TFEU and as appropriate Article 60 of the Statute of the Court of Justice of the European Union requesting an order that the effects of the judgment under appeal are not suspended pending the outcome of the appeal lodged by the Council against that judgment.

Legal and factual context

3On 24 September 2004 on a proposal from the Commission of the European Communities the Council adopted the contested regulation.

4On 14 May 2009 the Commission adopted Decision 2009/383/EC suspending the definitive anti-dumping duties imposed by Regulation No 1683/2004 (OJ 2009 L 120 p. 20) by which it suspended the definitive anti-dumping duties imposed by that regulation for a period of nine months as from 16 May 2009 that is to say until 15 February 2010.

5According to recital 8 of that decision given the temporary change in market conditions and in particular the level of prices on the European Union market together with the high profit levels of the European Union industry notwithstanding decreasing export prices from China it was considered that the injury linked to the imports of the product concerned originating in China was unlikely to resume as a result of the suspension.

6Zhejiang Xinan is a company incorporated under Chinese law and listed on the Shanghai Stock Exchange (China). Glyphosate which is a basic chemical herbicide widely used by farmers throughout the world is one of the main products produced and sold by that company on the Chinese and world markets.

7Following an action brought by Zhejiang Xinan the General Court by the judgment under appeal annulled Article 1 of the contested regulation in so far as it concerns Zhejiang Xinan. The General Court upheld the first plea in law put forward by Zhejiang Xinan alleging that the institutions of the European Union had infringed the first indent of Article 2(7)(c) of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56 p. 1) as amended by Council Regulation (EC) No 461/2004 of 8 March 2004 (OJ 2004 L 77 p. 12) by refusing to grant it market economy status. The judgment under appeal annulled the contested regulation only in so far as it concerns Zhejiang Xinan.

8On 18 August 2009 the Council lodged its appeal against the judgment under appeal. The Commission has submitted observations in support of the form of order sought by the Council.

9Following a request from the European Glyphosate Association which took the view that the expiry of the anti-dumping measures was likely to result in a continuation or recurrence of dumping and recurrence of injury to the European Union industry the Commission initiated on 29 September 2009 an expiry review of those measures under Article 11(2) of Regulation No 384/96 as amended by Regulation No 461/2204.

10The Commission sent a standard letter to all the exporters/producers to inform them of the expiry review of the anti-dumping measures.

11Zhejiang Xinan informed the Commission that as a result of the judgment under appeal it considered that it did not have to participate in the expiry review of those measures.

12The Commission nevertheless requested that Zhejiang Xinan cooperate in the review procedure. As Zhejiang Xinan stated in its application for interim measures it cooperated ‘under protest’ in submitting the requested information and having been designated for that purpose in responding to a detailed questionnaire.

13As it did not agree with the Commission’s intention to carry out on-the-spot verifications Zhejiang Xinan lodged the present application for interim measures.

14On 11 February 2010 the Council adopted Implementing Regulation (EU) No 126/2010 extending the suspension of the definitive anti-dumping duty imposed by Regulation No 1683/2004 (OJ 2010 L 40 p. 1). Regulation No 126/2010 extended the suspension of the anti-dumping duty for a period of one year namely until 11 February 2011.

Forms of order sought and arguments of the parties

15For the purpose of requesting the Court to order that the effects of the judgment under appeal are not suspended on account of the lodging of the appeal by the Council Zhejiang Xinan submits first of all that notwithstanding the fact that the Commission on 14 May 2009 and then on 11 February 2010 itself ordered the suspension of the anti-dumping measures with regard to all imports of glyphosate from China the suspensory effect of such an appeal has the consequence of undermining Zhejiang Xinan’s entry into the European Union market and requiring it to participate in the expiry review.

16Such a suspensory effect cannot apply to an administrative procedure such as the expiry review of anti-dumping measures. Furthermore according to Zhejiang Xinan the issues raised in its application for interim measures are not the same as those in the appeal.

17Principally Zhejiang Xinan submits that the Commission’s insistence on the suspensory effect of the appeal lodged against the judgment under appeal and on the consequences of the suspension of execution of that judgment namely those of subjecting Zhejiang Xinan to the burdens and risks associated with that situation and the disruptions of the expiry review breaches its fundamental rights deriving from the principle of non bis in idem and the principle of legal certainty.

18Also principally Zhejiang Xinan submits that Article 278 TFEU applies to the present case without exception. It takes the view that the FEU Treaty does not provide for any automatic exception to the general rule set out in Article 278 TFEU according to which actions brought before the Court of Justice are not to have suspensory effect. Article 279 TFEU according to which the Court may in any cases before it prescribe any necessary interim measures does not imply such an automatic suspension of the judgment against which an appeal has been lodged.

19According to Zhejiang Xinan the rationale for the exception to the principle of the immediate effect of rulings of the General Court that annul regulations an exception which is provided for in the second paragraph of Article 60 of the Statute of the Court of Justice is explained by the fact that regulations are acts of general application applying to a great number of individual situations. If such an act were initially regarded as void following its annulment by a judgment of the General Court and subsequently reintroduced into the European Union legal order following the setting aside of that judgment by the Court of Justice that could lead to great uncertainty. However that rationale does not apply in the present case given that the Commission had ordered the overall suspension of the measure imposed by the contested regulation.

20Consequently the annulment of certain provisions in a regulation which provides for anti-dumping measures does not amount to the annulment of the entire regulation. It is the latter situation that is covered by the second paragraph of Article 60 of the Statute of the Court of Justice whereas that provision does not apply to the former situation as in this case. Article 1 of the contested regulation was annulled in so far as it concerns Zhejiang Xinan.

21In the alternative Zhejiang Xinan requests that the Court order as appropriate under the second paragraph of Article 60 of the Statute of the Court of Justice that the effects of the judgment under appeal are not suspended by the lodging of the Council’s appeal as that suspension threatens to cause it serious and irreparable harm.

22First as regards the condition relating to a prima facie case Zhejiang Xinan submits that the judgment under appeal sufficiently creates a prima facie case as such regarding the merits of its case in the appeal proceedings. Secondly the urgency of and the need for the relief sought by Zhejiang Xinan is the result of the serious risks and damage to which it remains exposed in the market a situation which is compounded by the disruption of the review procedure. Thirdly as regards the balance of interests Zhejiang Xinan states that Decision 2009/383 by which the Commission suspended the anti-dumping measures provided for by the contested regulation means in practice that Zhejiang Xinan is the only party to this case whose interests are affected by the suspension of execution of the judgment under appeal.

23The Council and the Commission submitted their written observations on 18 and 19 February 2010 respectively. Those two institutions request that the Court dismiss the application for interim measures and order Zhejiang Xinan to pay the costs.

24The Council submits in the first place that the expiry review of the anti-dumping measures and the requested interim measure namely the order that the effects of the judgment under appeal are not suspended are unconnected and therefore Zhejiang Xinan cannot rely on the alleged mandatory participation in the expiry review in support of its request for interim measures. Before elaborating on that submission the Council makes three preliminary observations.

25The Council recalls that the anti-dumping duties have been suspended since May 2009. Therefore it submits first of all that the fact that the effects of the judgment under appeal were suspended by the appeal lodged by the Council had and currently has no practical consequences. Secondly according to the Council neither the judgment under appeal nor the appeal has any bearing on the legality of the Commission’s initiation of the expiry review. Lastly the Council states that Zhejiang Xinan is not obliged to participate in that expiry review given that participation in the review and cooperation with the Commission are voluntary.

26The Council therefore contends first that the expiry review of the anti-dumping measures cannot deprive Zhejiang Xinan of anything it may ultimately gain as a result of the action which it brought against the contested regulation. Secondly an order in favour of Zhejiang Xinan pursuant to which the effects of the judgment under appeal would not be suspended would not exempt Zhejiang Xinan’s exports from a possible confirmation of the anti-dumping duties following the conclusion of the expiry review of those measures.

27Furthermore the Council argues that Zhejiang Xinan’s allegations that Article 278 TFEU applies to the present case without exception and that the second paragraph of Article 60 of the Statute of the Court of Justice does not apply are inadmissible and irrelevant. Such allegations even if well founded which the Council disputes would not serve to establish that the conditions necessary for the grant of the interim measure requested are met in the present case. In particular they could not show that that measure is necessary to prevent Zhejiang Xinan from suffering imminent serious and irreparable harm that is to say that it is urgent. However in the absence of urgency there is no basis which makes it possible for the President of the Court to prescribe interim measures.

29The Commission submits that Zhejiang Xinan’s application is inadmissible for the same reasons in essence as those set out by the Council.

30In the second place the Council and the Commission submit that the arguments relied on in the application for interim measures fall far short of demonstrating that the well-established conditions for the grant of interim measures are met.

31The Association des utilisateurs et distributeurs de l’agrochimie européenne (Audace) submitted its observations on 17 February 2010. Referring to considerable confusion and uncertainty in the European Union glyphosate market it requests that the Court grant the order sought by Zhejiang Xinan and order the Council to pay the costs incurred by Audace in the interim proceedings.

The developments which took place in the course of the interim proceedings

32On 13 December 2010 the Council adopted Implementing Regulation (EU) No 1187/2010 terminating the anti-dumping proceeding on imports of glyphosate originating in the People’s Republic of China (OJ 2010 L 332 p. 31). Article 1 of that regulation provides:

‘The anti-dumping measures concerning imports of glyphosate … originating in the People’s Republic of China are hereby repealed and the proceeding concerning these imports is terminated.’

33By letter of 21 December 2010 the Council drew the Court’s attention to the adoption of that regulation. In that letter the Council submits that in view of that new legal fact the application for interim measures has become devoid of purpose.

34By letter of 7 January 2011 the Commission proceeded in the same way as the Council.

35By letter of 12 January 2011 Zhejiang Xinan informed the Court that it intended to maintain its application for interim measures.

36After having been requested to do so by the Court Zhejiang Xinan stated by letter of 18 February 2011 the reasons which in its submission justify the maintenance of its application for interim measures.

37The Council and the Commission submitted their observations in that regard on 1 March and 28 February 2011 respectively.

38Audace submitted its observations on 3 March 2011 dwelling as did Zhejiang Xinan on the reasons justifying the maintenance of Zhejiang Xinan’s application for interim measures.

Consideration of the application for interim measures

39It must be pointed out that according to the express statements contained in the application for interim measures lodged by Zhejiang Xinan the suspensory effect of the appeal lodged by the Council against the judgment under appeal has the consequence in practice of undermining Zhejiang Xinan’s entry into the European Union glyphosate market or even of preventing it from properly carrying out its business operations in that market and requiring it to participate in the review procedure.

40However following the adoption of Regulation No 1187/2010 those consequences are no longer relevant and Zhejiang Xinan no longer relies on them in its observations submitted to the Court on 18 February 2011.

41First that regulation clarified the situation of the European Union glyphosate market by repealing the anti-dumping measures concerning imports of glyphosate originating in China with the result that Zhejiang Xinan is once and for all able to carry out its activities in a situation of legal certainty.

42Secondly that regulation terminated the review procedure with the result that the alleged obligation on the part of Zhejiang Xinan to participate in that procedure and the risks which it put forward relating to such a participation no longer exist.

43In its observations of 18 February 2011 Zhejiang Xinan merely claims that the question whether the Council can review an anti-dumping regulation in relation to an undertaking with regard to which that regulation has been annulled by the General Court is of critical interest to the undertakings which may in the future approach the Court of Justice in similar circumstances. It adds that a response on the part of the Court of Justice to its application for interim measures will constitute a precedent which will be likely to guide the conduct of the institutions and of undertakings and contribute to the clarification of the provisions of the Statute of the Court of Justice.

44Such considerations of a general nature or even the interest in the resolution of legal questions which might be raised in the future in cases similar to that which gave rise to the present application for interim measures cannot suffice to justify the maintenance of that application.

45The purpose of the procedure for interim relief is to guarantee the full effectiveness of the definitive future decision in order to ensure that there is no lacuna in the legal protection provided by the Court of Justice (order of the President of the Court in Case C‑7/04 P(R) Commission v Akzo and Akcros [2004] ECR I-8739 paragraph 36).

46In the present case as the Commission pointed out in its observations submitted to the Court of Justice on 28 February 2011 the present application for interim measures can have no relevance to ensuring the effectiveness of the General Court’s annulment of the contested regulation if the appeal is dismissed by the Court of Justice since the entire anti-dumping procedure concerning glyphosate from China has in the meantime been terminated by Regulation No 1187/2000 and the anti-dumping duties concerned have been repealed.

47Lastly Zhejiang Xinan states that notwithstanding the fact that the review procedure has been terminated the Commission may initiate a further investigation at any time inter alia following a new complaint made to it. Accordingly the urgency and the risk of serious and irreparable harm remain valid.

48In that regard it is sufficient to point out that in addition to the fact that such a risk appears to be purely hypothetical it could be assessed only after the initiation of a possible further review procedure by taking into consideration the facts existing at the time when such a review was carried out and those facts are not known nor even foreseeable at present.

49It follows from all of the above considerations that there is no longer any need to adjudicate on the present application for interim measures.

On those grounds the President of the Court hereby orders:

There is no longer any need to adjudicate on the application for interim measures lodged by Zhejiang Xinan Chemical Industrial Group Co. Ltd.

The costs are reserved.

[Signatures]

*

Language of the case: English.