Article 20 - Equality before the law
Article 47 - Right to an effective remedy and to a fair trial
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:
In the light of the foregoing considerations, I consider that the Court should:
24) SolarWorld puts forward two grounds of appeal. First, it submits that the General Court erred in law in finding that Article 3 of the regulation at issue is not severable from the remainder of that regulation. Second, it contends that, in dismissing its action as inadmissible, the General Court infringed Articles 47 and 20 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
...
72) By its second ground of appeal, SolarWorld submits that, in finding, at paragraphs 53 to 60 of the order under appeal, and in particular at paragraphs 55 and 59 of that order, that the action was inadmissible, the General Court infringed Articles 47 and 20 of the Charter.
73) As regards the infringement of Article 47 of the Charter, SolarWorld maintains that, although Union producers have been found to be individually concerned by regulations imposing anti-dumping measures, they would be deprived of any effective judicial remedy if they could not seek partial annulment of those regulations. In that regard, SolarWorld stresses that its actions for the annulment of Regulation No 513/2013 and of Decisions 2013/423 and 2013/707 were dismissed as inadmissible.
74) As regards the infringement of Article 20 of the Charter, SolarWorld argues that, in dismissing as inadmissible its action for the partial annulment of the regulation at issue while finding that the action brought by Chinese exporters for the annulment of that regulation was admissible, the General Court did not treat EU producers and Chinese exporters equally.
75) The Council submits that the second ground of appeal should be rejected. The Council points out, in particular, that Article 47 of the Charter was not intended to change the system of judicial review laid down by the Treaties, particularly the rules relating to admissibility for direct actions before the Courts of the Union. As for the infringement of Article 20 of the Charter, that plea is inadmissible because it was not raised before the General Court. In any event, it is unfounded since SolarWorld and the Chinese producers were not treated differently. This is because SolarWorld could have sought the annulment of the entire regulation at issue.
76) The Commission contends that the second ground of appeal is unfounded. As regards the infringement of Article 47 of the Charter, the Commission stresses, first, that that provision was not intended to change the system of judicial review laid down by the Treaties, second, that SolarWorld did in fact bring an action for the annulment of Decisions 2013/423 and 2013/707 and, third, that it could have brought an action for the annulment of the entire regulation at issue. As for the infringement of Article 20 of the Charter, the Commission submits that SolarWorld and the Chinese exporters were not treated differently since SolarWorld could have brought an action for the annulment of the entire regulation at issue and it could have requested the suspension of the effects of the judgment until that regulation was replaced by a fresh regulation imposing higher anti-dumping duties.
77) The Council argues that the plea alleging an infringement of Article 20 of the Charter is inadmissible since it was not raised before the General Court.
78) It is true that SolarWorld did not raise a plea alleging an infringement of Article 20 of the Charter in its reply to the Council’s plea of inadmissibility before the General Court. Therefore, the second ground of appeal is, in my view, inadmissible in so far as it alleges an infringement of Article 20 of the Charter.
79) Nevertheless, for the sake of completeness, I will examine below whether, in dismissing SolarWorld’s action as inadmissible, the General Court infringed Article 20 of the Charter.
80) By the second ground of appeal, SolarWorld contends that, in dismissing its action as inadmissible, the General Court infringed Articles 47 and 20 of the Charter.
81) In my view, the second ground of appeal must be rejected.
82) First, as regards the alleged infringement of Article 47 of the Charter, it is true that, as mentioned above, SolarWorld’s action for the annulment of Decision 2013/707, whereby the Commission accepted the exporting producers’ offer of an undertaking, was dismissed as inadmissible on the ground that ‘a decision accepting an undertaking offer … does not produce legal effects such as to affect directly the legal situation of European Union producers such as [SolarWorld]’. ( 54 ) SolarWorld’s action for the annulment of the decision contained in the Commission’s letter of 15 September 2014, whereby the Commission adjusted the minimum import price set out in the undertaking, was dismissed by the General Court on the merits, ‘without it being necessary to examine its admissibility’. ( 55 )
83) However, I note that, according to the Explanations relating to the Charter, Article 47 ‘[was not] intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to admissibility for direct actions before the Court of Justice of the European Union’. ( 56 ) Consequently, it is settled case-law that the conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, but such an interpretation cannot have the effect of setting aside the conditions expressly laid down in that Treaty. ( 57 )
85) Therefore, I consider that the plea alleging an infringement of Article 47 of the Charter must be rejected.
86) Second, as regards the alleged infringement of Article 20 of the Charter, it seems to me that, should the Court consider that Article 3 of the regulation at issue is not severable from the remainder of that regulation and that SolarWorld cannot seek partial annulment of the regulation at issue, SolarWorld would not be treated differently from exporting producers. As mentioned above, it follows from the General Court’s judgment in Canadian Solar that exporting producers cannot seek partial annulment of the regulation at issue (since Article 1 is not severable from the remainder of that regulation). ( 59 )
87) Consequently, should the Court consider that the plea alleging an infringement of Article 20 of the Charter is admissible, it should, in my view, reject that plea as unfounded.
