Opinion of Advocate General Pitruzzella delivered on 14 July 2022

1 Original language: Italian.

2 The two cases in question were joined by a decision of the President of the Court of Justice of 7 January 2021.

3 Commission Implementing Regulation of 7 December 2016 withdrawing the acceptance of the undertaking for two exporting producers under Implementing Decision 2013/707/EU confirming the acceptance of an undertaking offered in connection with the anti-dumping and anti-subsidy proceedings concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China for the period of application of definitive measures (OJ 2016 L 333, p. 4).

4 OJ 2016 L 176, p. 21.

5 OJ 2016 L 176, p. 55.

6 Furthermore, the relevant provisions of the basic regulations are substantially identical to those 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, and corrigendum in OJ 2016 L 44, p. 20), which was applicable on the date when the anti-dumping duties in question were imposed, and Council Regulation (EC) No 597/2009 of 11 June 2009 on protection against subsidised imports from countries not members of the European Community (OJ 2009 L 188, p. 93), which was applicable on the date when the countervailing duties in question were imposed. Consequently, for the purposes of examining the present appeals, as in the judgment under appeal, reference will be made to the basic regulations, save where Regulations No 1225/2009 and No 597/2009 differ from those texts or where the context so requires.

7 See references to paragraph 2 of the judgment under appeal.

8 Commission Decision accepting an undertaking offered in connection with the anti-dumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the People’s Republic of China (OJ 2013 L 209, p. 26).

9 Council Implementing Regulation imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China (OJ 2013 L 325, p. 1).

10 Council Implementing Regulation 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 (OJ 2013 L 325, p. 66).

11 See footnote 6 above.

12 Commission Implementing Decision confirming the acceptance of an undertaking offered in connection with the anti-dumping and anti-subsidy proceedings concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells) originating in or consigned from the People’s Republic of China for the period of application of definitive measures (OJ 2013 L 325, p. 214).

13 See, inter alia, judgment of 28 February 2019, Council v Growth Energy and Renewable Fuels Association ( C‑465/16 P, EU:C:2019:155, paragraph 69 and the case-law cited).

14 For examples of cases before the EU courts on questions relating to the invalidation of invoices, see, inter alia, judgment of 21 October 2021, Wilo Salmson France ( C‑80/20, EU:C:2021:870), or the judgment of the General Court of 2 October 2014, Spraylat v ECHA ( T‑177/12, EU:T:2014:849, in particular paragraph 21).

15 See recital 32 and, a contrario, the final sentence of recital 33 of the regulation at issue.

16 The General Court refers to the judgment of 9 September 2010, Usha Martin v Council and Commission ( T‑119/06, EU:T:2010:369), upheld on appeal by judgment of 22 November 2012, Usha Martin v Council and Commission ( C‑552/10 P, EU:C:2012:736).

17 See, inter alia, judgments of 17 September 2015, Mory and Others v Commission ( C‑33/14 P, EU:C:2015:609, paragraphs 55 and 56 and the case-law cited), and of 27 March 2019, Canadian Solar Emea and Others v Council ( C‑236/17 P, EU:C:2019:258, paragraphs 91 and 92 and the case-law cited, the judgment in Canadian Solar).

18 Indeed, it is clear from the case-law that, if the grounds of a judgment of the General Court disclose an infringement of EU law but its operative part is shown to be well founded on other legal grounds, such an infringement is not capable of bringing about the setting aside of that judgment, and a substitution of grounds must be made. See, inter alia, judgment of 11 May 2017, Dyson v Commission ( C‑44/16 P, EU:C:2017:357, paragraph 55 and the case-law cited).

19 See paragraph 64 of the judgment under appeal.

20 Judgment of 9 November 2017, SolarWorld v Council ( C‑205/16 P, EU:C:2017:840, the judgment in SolarWorld) and the judgment in Canadian Solar, cited in footnote 17 above.

21 See judgments of 6 March 1979, Simmenthal v Commission ( 92/78, EU:C:1979:53, paragraph 39), and, most recently, of 17 December 2020, BP v FRA ( C‑601/19 P, not published, EU:C:2020:1048, paragraph 26 and the case-law cited).

22 See, inter alia, judgment of 15 February 2001, Nachi Europe ( C‑239/99, EU:C:2001:101, paragraph 37), and the other case-law cited in paragraph 56 of the judgment under appeal.

23 On the necessary difference between an incidental finding of illegality and an annulment judgment, see the relevant discussion on page 195 of the Opinion of Advocate General Trabucchi in Joined Cases Kortner and Others v Council and Others ( 15/73 to 33/73, 52/73, 53/73, 57/73 to 109/73, 116/73, 117/73, 123/73, 132/73 and 135/73 to 137/73, not published, EU:C:1973:164).

24 See paragraphs 44, 55 and 57 of the judgment in SolarWorld. The Court of Justice specifically ruled, in paragraph 46 of that judgment, that 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 EU industry of Chinese subsidies relating to the products at issue, while safeguarding the interests of that industry.

25 See the judgment in SolarWorld, paragraph 38 and the case-law cited.

26 See paragraph 64 of the judgment in Canadian Solar.

27 See, inter alia, judgments of 17 September 2015, Mory and Others v Commission ( C‑33/14 P, EU:C:2015:609, paragraph 56), and the judgment in Canadian Solar (paragraphs 91 and 92 and the case-law cited).

28 Specifically in the judgment in Canadian Solar, the Court of Justice held that a plea for annulment is inadmissible on the ground of a lack of interest in bringing proceedings where, even if it were well founded, annulment of the contested act on the basis of that plea would not give the applicant satisfaction. See that judgment, paragraph 93 and the case-law cited.

29 See the judgment in SolarWorld, paragraph 38 and the case-law cited.

30 Jiangsu alleges that the judgments in SolarWorld and Canadian Solar referred in general to Articles 3 and 2, respectively, of Implementing Regulations No 1238/2013 and No 1239/2013 and not specifically to the provisions of paragraph 2 of those articles, which it argues are, however, severable from the remainder of the article. The institutions contest that reading of the provisions in question.

31 On that point, see, inter alia, judgments of 16 February 2022, Hungary v Parliament and Council ( C‑156/21, EU:C:2022:97, paragraph 293 and the case-law cited), and the judgment in SolarWorld, paragraph 38 and the case-law cited.

32 See, to that effect, judgment of 28 June 1972, Jamet v Commission ( 37/71, EU:C:1972:57, paragraphs 11 and 12), and Opinion of Advocate General Bot in Spain v Council ( C‑442/04, EU:C:2008:58, point 83).

33 On that point, see footnote 23 above and the Opinion of Advocate General Bot in Spain v Council ( C‑442/04, EU:C:2008:58, point 83).

34 See judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, ( C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 29 and the case-law cited).

35 See paragraphs 119 and 130 of the judgment under appeal.

36 See paragraphs 132 to 137 of the judgment under appeal.

37 Council Regulation of 8 March 2004 amending Regulation (EC) No 384/96 on protection against dumped imports from countries not members of the European Community and Regulation (EC) No 2026/97 on protection against subsidised imports from countries not members of the European Community (OJ 2004 L 77, p. 12).

38 See the Commission’s second ground of appeal and the first part of the Council’s second ground of appeal, which concern paragraphs 119, 129 to 132, 138, 140 to 147 and 151 of the judgment under appeal.

39 The institutions refer to the judgments of 15 March 2018, Deichmann ( C‑256/16, EU:C:2018:187, paragraph 78), and of 19 June 2019, C & J Clark International ( C‑612/16, not published, EU:C:2019:508, paragraphs 52 to 58).

40 See the third ground of appeal in case C‑439/20 against paragraphs 119, 130 to 138, 140 to 147 and 151 of the judgment under appeal.

41 The undertaking is therefore in principle accepted before the definitive anti-dumping or countervailing duties are imposed.

42 My emphasis.

43 In actual fact, only Article 8(9) of the basic anti-dumping regulation uses the adverb automatically.

44 See, inter alia, judgment of 2 December 2021, Commission and GMB Glasmanufaktur Brandenburg v Xinyi PV Products (Anhui) Holdings ( C‑884/19 P and C‑888/19 P, EU:C:2021:973, paragraph 70 and the case-law cited).

45 See, most recently, judgment of 2 June 2022, SR (Translation costs in civil proceedings) ( C‑196/21, EU:C:2022:427, paragraph 33 and the case-law cited).

46 That recital states that Article 8(9) of the Basic Anti-Dumping Regulation [previously in force] stipulates, inter alia, that in case of withdrawal of undertakings by any party, a definitive duty is to be imposed in accordance with Article 9 on the basis of the facts established within the context of the investigation which led to the undertakings. This provision has led to a time-consuming double-proceeding consisting of both a Commission Decision withdrawing the acceptance of the undertaking and a Council Regulation re-imposing the duty. Taking into account that this provision does not leave any discretion to the Council as to the introduction of a duty to be imposed following the breach or withdrawal of an undertaking or as to its level, it is considered appropriate to modify the provisions in Articles 8(1), (5) and (9) in order to clarify the Commission’s responsibility and to allow withdrawal of an undertaking and application of the duty by one single legal act. I therefore consider the General Court’s rejection of the relevance of that recital in paragraph 144 of the judgment under appeal to be in error.

47 See paragraphs 130, 137 and 141 of the judgment under appeal.

48 See paragraph 130 of the judgment under appeal.

49 See paragraph 137 of the judgment under appeal.

50 See paragraph 151 of the judgment under appeal, which refers to paragraph 125 of that judgment.

51 See, with reference to Article 8 of the basic anti-dumping regulation, judgment of 22 November 2012, Usha Martin v Council and Commission ( C‑552/10 P, EU:C:2012:736, paragraph 36 in relation to paragraph 24).

52 See judgment of 22 November 2012, Usha Martin v Council and Commission ( C‑552/10 P, EU:C:2012:736, paragraph 32).

53 See, in relation to Article 14(1) of the basic anti-dumping regulation, judgment of 15 March 2018, Deichmann ( C‑256/16, EU:C:2018:187, paragraphs 57 to 60).