Council of the European Union v Marquis Energy LLC.

• Jurisdiction: European Union
• ECLI: ECLI:EU:C:2019:156
• Docket Number: C-466/16
• Date: 28 February 2019
• Celex Number: 62016CJ0466
• Procedure Type: Recours en annulation - irrecevable
• Court: Court of Justice (European Union)

JUDGMENT OF THE COURT (Third Chamber)

28 February 2019 (*)

(Appeal — Dumping — Implementing Regulation (EU) No 157/2013 — Imports of bioethanol originating in the United States of America — Definitive anti-dumping duty — Country-wide dumping margin — Actions for annulment — Non-exporting producer — Locus standi — Direct concern)

In Case C‑466/16 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 20 August 2016,

Council of the European Union, represented by S. Boelaert, acting as Agent, and by N. Tuominen, avocată,

appellant,

the other parties to the proceedings being:

Marquis Energy LLC, established in Hennepin (United States), represented by P. Vander Schueren, advocaat, and by N. Mizulin and M. Peristeraki, avocats,

applicant at first instance,

European Commission, represented by T. Maxian Rusche and M. França, acting as Agents,

ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol, represented by O. Prost and A. Massot, avocats,

interveners at first instance,

THE COURT (Third Chamber),

composed of M. Vilaras (Rapporteur), President of the Fourth Chamber, acting as President of the Third Chamber, J. Malenovský, L. Bay Larsen, M. Safjan and D. Šváby, Judges,

Advocate General: P. Mengozzi,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 3 October 2018,

gives the following

Judgment

1 By its appeal, the Council of the European Union asks the Court to set aside the judgment of the General Court of the European Union of 9 June 2016, Marquis Energy v Council (T‑277/13, ‘the judgment under appeal’, not published, EU:T:2016:343), by which the General Court, first, declared admissible the action brought by Marquis Energy LLC for the annulment of Council Implementing Regulation (EU) No 157/2013 of 18 February 2013 imposing a definitive anti-dumping duty on imports of bioethanol originating in the United States of America (OJ 2013 L 49, p. 10) (‘the regulation at issue’), and, secondly, annulled the regulation at issue in so far as it concerned Marquis Energy.

Background to the dispute

2 The background to the dispute was set out in paragraphs 1 to 14 of the judgment under appeal and may, for the purposes of the present proceedings, be summarised as follows.

3 Marquis Energy is a US undertaking and producer of bioethanol.

4 Following a complaint lodged on 12 October 2011 by ePURE, de Europese Producenten Unie van Hernieuwbare Ethanol (the European Producers Union of Renewable Ethanol Association), the European Commission published, on 25 November 2011, a notice of initiation of an anti-dumping proceeding concerning imports of bioethanol originating in the United States of America (OJ 2011 C 345, p. 7), in which it stated its intention to use sampling to select the exporting producers in the United States of America to be investigated in the context of that proceeding (‘the investigation’).

5 On 16 January 2012, the Commission notified Marquis Energy and four other companies, namely, Patriot Renewable Fuels LLC, Plymouth Energy Company LLC, POET LLC and Platinum Ethanol LLC, that they had been selected to be part of the sample of exporting producers.

6 On 24 August 2012, the Commission sent Marquis Energy the provisional disclosure document stating its intention to continue the investigation, without the adoption of provisional measures, and to extend the investigation to traders/blenders. That document stated that it was not possible at that stage to assess whether the exports of bioethanol originating in the United States had been made at dumped prices, on the ground that the sampled producers did not make a distinction between domestic sales and sales for export, and all their sales were to unrelated traders/blenders established in the United States, which then blended the bioethanol with gasoline and sold it on.

7 On 6 December 2012, the Commission sent Marquis Energy the definitive disclosure document in which it examined, on the basis of the data from the unrelated traders/blenders, the existence of dumping causing injury to the Union industry and envisaged imposing definitive measures at the rate of 9.6% countrywide, for a period of three years.

8 On 18 February 2013, the Council adopted the regulation at issue, on the basis of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ 2009 L 343, p. 51) (‘the basic anti-dumping regulation’), imposing an anti-dumping duty on bioethanol, referred to as ‘fuel ethanol’, at a rate of 9.5% countrywide for a period of five years.

9 It is apparent from paragraph 13 of the judgment under appeal that the Council stated, in recitals 12 to 16 of the regulation at issue, that the investigation had shown that none of the sampled producers had exported bioethanol to the EU market and that it was not the US producers of bioethanol but the traders/blenders who were the exporters of the product concerned to the European Union, so that, in order to complete the dumping investigation, the Council had relied on the data of the two traders/blenders that had agreed to cooperate.

10 It is also stated, in paragraph 14 of the judgment under appeal, that the Council explained, in recitals 62 to 64 of the regulation at issue, that it was appropriate to establish a countrywide dumping margin, since the structure of the bioethanol industry and the way in which the product concerned was produced and sold on the US market and exported to the European Union made it impracticable to establish individual dumping margins for US producers.

The procedure before the General Court and the judgment under appeal

11 By application lodged at the General Court Registry on 15 May 2013, Marquis Energy brought an action for annulment of the regulation at issue.

12 The General Court, first of all, found that Marquis Energy’s action was admissible, in the light of the arguments set out in paragraphs 40 to 118 of the judgment under appeal, after recalling first the principal conclusions in the relevant case-law on the interpretation of the fourth paragraph of Article 263 TFEU in general and in relation to dumping, and then examining in turn Marquis Energy’s standing to bring proceedings and its interest in bringing proceedings against the regulation at issue.

13 The General Court upheld next, in paragraphs 121 to 168 and 203 of the judgment under appeal, the second part of the first plea in law raised by Marquis Energy, alleging an infringement by the Council of Article 9(5) of the basic anti-dumping regulation and, therefore, annulled the regulation at issue in so far as it concerned that undertaking.

14 In paragraphs 55 to 80 of the judgment under appeal, the General Court examined more specifically the issue of whether Marquis Energy was directly concerned by the regulation at issue, within the meaning of the fourth paragraph of Article 263 TFEU.

15 First, the General Court recalled, in paragraph 55 of the judgment under appeal, its case-law in accordance with which a company on whose products an anti-dumping duty is imposed is directly concerned by a regulation imposing that anti-dumping duty because it obliges the Member States’ customs authorities to levy the duty imposed without leaving them any discretion.

16 Secondly, the General Court found, in the first place, in paragraphs 56 to 67 of the judgment under appeal, that Marquis Energy was directly concerned by the anti-dumping duty imposed by the regulation at issue, on the ground that it was a producer of the product, which — when imported into the European Union from the coming into force of the regulation at issue — was subject to the anti-dumping duty.

17 In that regard, the General Court relied, in paragraph 60 of the judgment under appeal, on four findings relating to the...