Case C‑205/16 P

SolarWorld AG

v

Council of the European Union

(Appeal — Subsidies — Implementing Regulation (EU) No 1239/2013 — Article 2 — Imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from China — Definitive countervailing duty — Exemption of imports covered by an accepted undertaking — Severability)

Summary — Judgment of the Court (Ninth Chamber), 9 November 2017

1. Appeal—Grounds—Mere repetition of the pleas and arguments put forward before the General Court—Inadmissibility—Challenge to the interpretation or application of EU law made by the General Court—Admissibility

   (Art. 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Arts 168(1)(d) and 169(2)

2. Actions for annulment—Purpose—Partial annulment—Condition—Severability of the contested provisions—Provision of a Council regulation exempting from countervailing duties certain imports subject to an undertaking accepted by the Commission—Annulment entailing a modification of the substance of the regulation—Requirement not met

   (Art. 263 TFEU; Council Regulation No 1239/2013, Arts 1 and 2)

3. Appeal—Grounds—Plea submitted for the first time in the context of the appeal—Inadmissibility

   (Art. 256(1), second para., TFEU; Statute of the Court of Justice, Art. 58)

4. Fundamental rights—Right to effective judicial protection—Limits—Compliance with the conditions governing the admissibility of an action—Action for annulment of a regulation imposing a countervailing duty

   (Art. 263, fourth para., TFEU; Charter of Fundamental Rights of the European Union, Art. 47; Council Regulation No 1239/2013)

1.  See the text of the decision.

   (see paras 24-27)

2.  The General Court did not err in law in holding, in its assessment of the admissibility of an action seeking annulment of Article 2 of Implementing Regulation No 1239/2013 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, that that article was not severable from the remaining provisions of that regulation.

   Since the partial annulment of an EU act is possible only if the elements whose annulment is sought may be severed from the remainder of the act, the requirement of severability is not satisfied in the case where the partial annulment of an act would have the effect of altering its substance.

   In that regard, it follows from the provisions of Articles 1 and 2 of Implementing Regulation No 1239/2013 that the latter article establishes, by means of the undertaking relating to minimum import prices, an exemption from payment of countervailing duties imposed under Article 1 thereof, up to a certain level of annual imports. The EU legislature, when adopting that regulation, put in place trade defence measures constituting a set or a ‘package’. That regulation imposes two separate and complementary measures which seek to achieve a common goal, namely the removal of the injurious effect on the Union industry of Chinese subsidies relating to the products at issue, while safeguarding the interests of that industry.

   Since Implementing Regulation No 1239/2013 is based on the possibility of applying those two separate measures alternatively, the Chinese exporting producers can rely on the undertaking relating to minimum import prices accepted by the Commission, within the meaning of Article 2 of that regulation, and thus avoid an ad valorem countervailing duty, such as that laid down by Article 1 of that regulation, from being imposed on their products. The annulment of Article 2 of that regulation would remove such a possibility and eliminate the alternative which the EU legislature wished to offer to Chinese exporting producers when adopting the regulation at issue. Taking account of the differences in the economic consequences of those two types of trade defence measures, such an annulment would therefore affect the very substance of the regulation at issue.

   The application of the undertaking relating to minimum import prices concerned the vast majority of cases with effect from the adoption of Implementing Regulation No 1239/2013. That undertaking therefore appears to be intended to apply primarily in the context of the imports from China concerned by that implementing regulation. Accordingly, the annulment of that undertaking would necessarily affect the substance of the regulation.

   (see paras 38, 42, 46, 52, 55, 57)

3.  See the text of the decision.

   (see paras 64, 65)

4.  Article 47 of the Charter of Fundamental Rights of the European Union is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions before the Courts of the European Union. 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 EU legislative acts directly before the courts of the European Union.

   In those circumstances, the fact that a company cannot bring an action only against a part of Implementing Regulation No 1239/2013 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 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.

   (see paras 67, 68, 70)