Key facts of the case:
Appeal — Dumping — Implementing Regulation (EU) No 1238/2013 — Article 3 — Imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from China — Definitive anti-dumping duty — Exemption of imports covered by an accepted undertaking — Severability.
Outcome of the case:
On those grounds, the Court (Ninth Chamber) hereby:
21) In support of its appeal, SolarWorld raises two grounds of appeal. The first ground of appeal alleges that the General Court erred in finding that Article 3 of the regulation at issue is not severable from the remainder of that regulation. The second ground of appeal alleges infringement of Article 20 and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’)
57) SolarWorld argues that the General Court infringed its right to an effective remedy arising under Article 47 of the Charter and its right to equality before the law within the meaning of Article 20 of the Charter.
60) Moreover, the fact that it is possible for Chinese exporting producers, which caused the injury to the Union industry, to bring an action against a regulation adopting trade defence measures, while a European producer does not have that possibility, constitutes an infringement of the principle of equality before the law as laid down by Article 20 of the Charter. An EU producer, such as the appellant in the present case, has, in principle, an interest in not having the entire regulation imposing the trade defence measures annulled, but only the unlawful parts of that regulation.
61) The Council contends that the second ground of appeal, inasmuch as it pleads, for the first time, in the context of the appeal, infringement of Article 20 of the Charter, must be regarded as inadmissible. The Council takes the view that, in any event, as was also indicated by the Commission, the second ground of appeal is unfounded in its entirety.
63) In the present case, infringement of Article 20 of the Charter is raised for the first time before the Court of Justice, even though SolarWorld had the opportunity to argue that there was an infringement of that article in the context of the two grounds of inadmissibility of the action put forward by the Council before the General Court. SolarWorld’s second ground of appeal is therefore inadmissible to the extent that it relates to an infringement of Article 20 of the Charter.
64) As regards the argument alleging infringement of Article 47 of the Charter, SolarWorld argues that if it were not in a position to challenge the regulation at issue in part, it would have no legal remedy where the EU institutions impose anti-dumping measures in an amount which is inadequate to remove the injury suffered by EU producers.
66) In the second place, the protection conferred by Article 47 of the Charter does not require an individual to be unconditionally entitled to bring an action for annulment of such an EU legislative act directly before the courts of the European Union (judgment of 3 October 2013, Inuit Tapiriit Kanatami and Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 105).
68) In those circumstances, the fact that SolarWind cannot bring an action only against a part of the regulation at issue which cannot be severed is not such as to infringe its rights under Article 47 of the Charter, in so far as that company could challenge the regulation at issue in its entirety. It could, subject to meeting the requirements as to standing laid down by Article 263(4) TFEU, challenge the regulation at issue directly before the General Court while requesting the suspension of the effects of that annulment until the adoption by the EU institutions of the necessary measures to implement the judgment bringing about the annulment, or challenge the validity of the regulation at issue before the national courts and get the latter to request a preliminary ruling from the Court of Justice.
69) It follows from the above considerations that the order under appeal, in so far as the General Court held therein that, since Article 3 of the regulation at issue is not severable from the remainder of that regulation, SolarWorld’s application was inadmissible, does not infringe Article 47 of the Charter.