Provisional text
JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
16 February 2017 (*)
(Common Customs Tariff — Regulation concerning the suspension of autonomous duties on certain agricultural and industrial products — Objection to existing suspensions — Equivalence of products — Procedure for handling objections)
In Case T‑191/14,
Lubrizol France SAS, established in Rouen (France), represented by R. MacLean, Solicitor, B. Hartnett, Barrister, and A. Bochon, lawyer,
applicant,
v
Council of the European Union, represented by F. Florindo Gijón and M. Balta, acting as Agents,
defendant,
supported by
European Commission, represented initially by A. Caeiros and M. Clausen, and subsequently by A. Caieros and A. Lewis, acting as Agents,
intervener,
APPLICATION pursuant to Article 263 TFEU seeking annulment of Articles 1 and 4 of Council Regulation (EU) No 1387/2013 of 17 December 2013 suspending the autonomous Common Customs Tariff duties on certain agricultural and industrial products and repealing Regulation (EU) No 1344/2011 (OJ 2013 L 354, p. 201), to the extent that those measures deprived the applicant of its entitlement to three duty suspensions which it previously enjoyed under former TARIC Codes 2918 2900 80, 3811 2900 10 and 3811 9000 30,
THE GENERAL COURT (Fifth Chamber),
composed of A. Dittrich (President), J. Schwarcz (Rapporteur) and V. Tomljenović, Judges,
Registrar: L. Grzegorczyk, Administrator,
having regard to the written part of the procedure and further to the hearing on 10 November 2016,
gives the following
Judgment
Background to the dispute
1 The applicant, Lubrizol France SAS, is a company which manufactures, markets and sells additives for engine oil, fuel and other industrial uses.
2 On 30 January and 9 February 2012, the applicant filed three requests for suspension of the autonomous customs duties applied by the European Union covering a range of products which it was importing from companies connected with it and registered in the United States. One of the suspension requests was filed with the competent authorities of the Kingdom of Belgium and the other two were filed with those of the French Republic.
3 The Kingdom of Belgium and the French Republic submitted the suspension requests to the Economic Tariff Questions Group (‘the ETQG’), whose task is to support the European Commission in the examination of requests for suspension of customs duties or tariff quota volumes, in accordance with paragraph 4.1.5 of the Communication from the Commission concerning autonomous tariff suspensions and quotas (2011/C 363/02) (OJ 2011 C 363, p. 6) (‘the Commission’s communication’).
4 The examination of the suspension requests by the ETQG was concluded with the submission of a proposal for a regulation to the Council of the European Union for the adoption of the proposed duty suspensions.
5 Council Regulation (EU) No 1232/2012 of 17 December 2012 amending Regulation (EU) No 1344/2011 suspending the autonomous Common Customs Tariff duties on certain agricultural, fishery and industrial products (OJ 2012 L 350, p. 8) granted suspensions of customs duties for the products which were the subject of the applicant’s requests made to the competent Belgian and French authorities and listed those products in Annex I to Council Regulation (EU) No 1344/2011 of 19 December 2011 suspending the autonomous Common Customs Tariff duties on certain agricultural, fishery and industrial products and repealing Regulation (EC) No 1255/96 (OJ 2011 L 349, p. 1), by allocating to each of them a specific code under the Integrated Tariff of the European Union (TARIC). As a result, whereas previously those products had been, in the case of two of them, subject to customs duties of 5.8% and, in the case of the third, customs duties of 6.5%, the products could now be imported into the European Union without the application of customs duties.
6 After the entry into force of Regulation No 1232/2012, the competent Belgian and French authorities notified the applicant that a company established in the European Union (‘the objector’) had challenged the continued implementation of the suspensions granted by that regulation in respect of the products imported by the applicant.
7 In emails of 10 and 30 May 2013, the applicant indicated to the objector that the objector’s products were not comparable to those covered by the customs duties suspensions, or that if they were, they could not replace the products imported, in that, since the resulting additive packages of the objector were different from those the applicant produced, those packages would not meet the specifications of its European customers. In addition, the applicant requested that the objector provide further information confirming, inter alia, whether the products which it manufactured could be substituted for the imported products, but it did not receive any reply from the objector.
8 By emails of 4 and 5 July and 16 August 2013, the objector replied to the applicant with clarifications concerning the three products presented as comparable to the products covered by the suspensions of customs duties under Regulation No 1232/2012. It is clear from those emails that the objector acknowledged, first, that its Kerocom Piba 03 product could not be classified under the same TARIC code as the Mannich product of polyisobutylene phenol and dimethylamine derivatives (‘DMP’), imported by the applicant, that it had a different structure from that product and that it was manufactured using a different process from that used to produce that product; secondly, that the Irganox L67 product was identical to the product Benzeneamine, N-phenyl- with nonene (branched) (‘BNP’) imported by the applicant; and, thirdly, that the Irganox L35 product, by contrast, was not identical to the product Benzenepropanoic acid, 3,5-bis (1,1-dimethylethylene)-4-hydroxy-, butyl ester (‘BPA’) imported by the applicant. As regards Kerocom Piba 03, the objector disputed the applicant’s comments concerning the better results obtained by its product, noted the better price/result ratio of its own product and the lack, in its view, of two separate markets for the applicant’s products and for its own.
9 At the same time, the applicant informed the ETQG delegates of the actions it had undertaken as a result of the objection to the suspensions of customs duties covering its products and the discussions with the objector.
10 Furthermore, the objector’s replies, referred to in paragraph 8 above, were communicated to the delegate representing the Federal Republic of Germany in the ETQG.
11 The ETQG met on 12 and 13 July 2013, and, although no other meeting was arranged, discussions nevertheless continued to take place. On 3 September 2013, the Commission then decided not to reject the objections raised by the objector. Consequently the Council adopted Regulation (EU) No 1387/2013 of 17 December 2013 suspending the autonomous Common Customs Tariff duties on certain agricultural and industrial products and repealing Regulation No 1344/2011 (OJ 2013 L 354, p. 201). Article 1 of Regulation No 1387/2013 provides that the autonomous Common Customs Tariff duties for the agricultural and industrial products listed in Annex I to that regulation are suspended and Article 4 provides that Regulation No 1344/2011 is repealed (‘the contested provisions’). It follows that the suspensions of customs duties covering the products imported by the applicant were repealed with effect from 1 January 2014.
Procedure and forms of order sought
12 By application lodged at the Court Registry on 21 March 2014, the applicant brought the present action.
13 By document lodged at the Court Registry on 27 May 2014, the Council raised an objection of inadmissibility under Article 114(1) of the Rules of Procedure of the General Court of 2 May 1991.
14 By document lodged at the Court Registry on 2 June 2014, the applicant filed a request for confidential treatment, vis-à-vis the public, of certain parts of the application and some of its annexes.
15 As the Council did not object to the confidential treatment of those documents within the period prescribed, they were granted confidential treatment and a non-confidential version of the application was communicated to the Council.
16 By document lodged at the Court Registry on 20 June 2014, the Commission applied for leave to intervene in support of the form of order sought by the Council pursuant to Article 115 of the Rules of Procedure of 2 May 1991. In their observations of 7 and 10 July 2014, the applicant and the Council did not raise any objections to that application to intervene.
17 On 14 July 2014 the applicant submitted its observations on the plea of inadmissibility and asked the Court to stay the proceedings until the Court of Justice had given judgment on the appeal against the order of 4 December 2013, Forgital Italy v Council (T‑438/10, not published, EU:T:2013:648).
18 By document lodged at the Court Registry on 28 July 2014, the Council informed the Court that it did not object to the applicant’s request to stay the proceedings.
19 By order of 15 September 2014 of the President of the Fifth Chamber of the Court, the proceedings were stayed pursuant to Article 77(c) of the Rules of Procedure of 2 May 1991 pending the final decision of the Court of Justice in Case C‑84/14 P, referred to in paragraph 17 above.
20 By order of 14 July 2015, Forgital Italy v Council (C‑84/14 P, not published, EU:C:2015:517), the Court of Justice dismissed the appeal brought by Forgital Italy SpA.
21 On 6 August 2015, in the context of the measures of organisation of procedure provided for in Article 88 of the Rules of Procedure of the General Court, the applicant and the Council were invited to submit their observations on the order of 14 July 2015, Forgital Italy v Council (C‑84/14 P, not published, EU:C:2015:517) and, more particularly, on paragraphs 38 to 69. The parties complied with the Court’s request within the prescribed period.
22 By order of the Court (Fifth Chamber) of 14 December 2015, adopted on the basis of Article 130(7) of the Rules of Procedure, the objection of inadmissibility was reserved for the final judgment and costs were reserved.
23 By decision of 15 February 2016, the President of the Fifth Chamber of the Court granted the Commission leave to intervene. On 30 March 2016, the Commission lodged its statement in intervention.
24 The reply was lodged at the Court Registry on 31 March 2016.
25 The rejoinder was lodged at the Court Registry on 17 May 2016.
26 The applicant submitted its observations on the Commission’s statement in intervention on 30 May 2016.
27 In its application and in its observations on the Commission’s statement in intervention the applicant claims that the Court should:
– declare the action admissible;
– annul the contested provisions in so far as they deprived it of three suspensions of autonomous Common Customs Tariff duties which applied to it;
– order the Council to pay the costs;
– order the Commission to pay the costs relating to its intervention.
28 The Council contends that the Court should:
– dismiss the action as manifestly inadmissible;
– in the alternative, dismiss the application as manifestly unfounded;
– order the applicant to pay the costs.
Law
Admissibility
29 In the present case, the Council has raised a plea of inadmissibility in which it has presented two objections to admissibility, alleging, respectively, that the contested provisions do not affect the applicant individually and that those provisions entail implementing measures.
30 In its statement in intervention and at the hearing, the Commission supported the form of order sought and the arguments raised by the Council in support of its plea of inadmissibility.
31 During the written and oral parts of the proceedings, the applicant contested the merits of those two objections to admissibility.
32 It must be noted that the Courts of the European Union are entitled to assess, according to the circumstances of each case, whether the proper administration of justice justifies the dismissal of the action on the merits without first ruling on its admissibility (see, to that effect, judgments of 26 February 2002, Council v Boehringer C‑23/00 P, EU:C:2002:118, paragraphs 51 and 52, and of 25 April 2013, Inuit Tapiriit Kanatami and Others v Commission, T‑526/10, EU:T:2013:215, paragraph 20).
33 In the circumstances of the case and for the sake of economy of procedure, the applicant’s claim for annulment should be considered first, without a prior ruling on the admissibility of the action as a whole, or on the admissibility of certain arguments or of the objection of illegality raised by the Council, as the action is, in any event and on the grounds set out below, wholly unfounded.
Substance
34 In support of its action, the applicant relies on two pleas in law. The first alleges a manifest error of assessment on the part of the Council in deciding to terminate the suspensions at issue. The second alleges infringement of essential procedural requirements and safeguards in adopting Regulation No 1387/2013.
First plea in law alleging a manifest error of assessment in deciding to terminate the suspensions at issue
35 By the first plea in law, the applicant claims that the Council failed to have regard to the substantive requirements for terminating the suspensions of customs duties set out in the first indent of paragraph 3.2 of the Commission’s communication, in accordance with which a duty suspension may be possible where identical, equivalent or substitute products are not manufactured in sufficient quantities in the European Union.
36 First, the applicant claims that, as regards BPA, the condition for terminating a customs duty suspension, that is to say, the product in question is available in sufficient quantities within the Union, has not been met. Furthermore, the objector conceded in its letter of 16 August 2013 that it was not able to supply the applicant with a product comparable to BPA.
37 Secondly, the applicant maintains that the objective criteria provided for in the Commission’s communication for the purposes of assessing the existence of equivalence between imported products and products from the Union were not applied correctly in the present case.
38 Accordingly, first, the applicant submits that none of the products offered is an identical, equivalent or substitute product in respect of the item covered by the duty suspension because of the stringent technical standards imposed. In addition to the technical standards imposed on the applicant by its customers and other external regulatory considerations, it would have been necessary to overhaul the blending and manufacturing process at the plant if the use of the objector’s product were to be contemplated.
39 Next, as regards in particular BPA and DMP, the ETQG and the Council wrongly adopted the objector’s view that the products in question, while not identical, were intended for similar use and could therefore be substituted. According to the applicant, such a conclusion constitutes an unduly extensive interpretation of the applicable substantive criteria which would give objectors too great an opportunity to challenge suspension applications or the continuance of such applications. The applicant notes that the criterion concerning the intended function and commercial use of the products cannot prevail if the first assessment criterion establishes that the products in question are sufficiently dissimilar. Moreover, the market deemed to be relevant is too broad and does not take into account the standards to be met, and imposed on the applicant by its customers.
40 In its reply and at the hearing, the applicant stressed the unique physical characteristics of the imported products, consisting of additive packages specifically developed for its customers. The applicant has little room, if any, to alter those packages, since such changes can lead, in addition to rejection by its customers of new additive packages, to under-performance of machines and vehicles to which they have been added and reduced performance in terms of compliance with environmental standards.
41 The applicant further observes that the objector’s late replies to the questions put to it meant that the BPA case could not be relied on, in the light of those replies, at the ETQG meetings, that the applicant had little time to prepare an in-depth reply and, finally, that the applicant was prevented from negotiating a tariff-free quota allowance for a limited volume of imported products.
42 As regards BNP, and more particularly the burden of proof, the applicant claims that nothing in the Commission’s communication relieves objectors of the burden of providing evidence in support of their claim. Moreover, it is contrary to the fundamental principles of EU law to afford greater weight to the arguments of the objector.Furthermore, the Council should have allowed the applicant to challenge the validity of the objector’s objection.The Council wrongly took the view that the objector, even though it had not replied promptly to the applicant’s clarification requests, had discharged its burden of proof that the contested tariff suspension was no longer justified.
43 Finally, the applicant claims that the Council compounded its error by failing to react to the objector’s subsequent admission that the materials which it intended for the applicant as an alternative to BPA were in fact unavailable in the Union.
44 The Council, supported by the Commission, referring to its broad discretion and considerable room for manoeuvre in making complex technical or political choices which it possesses under the common customs regime, denies that it made a manifest error of assessment in considering that it was necessary to end the suspensions, given that identical, equivalent or substitute products were available in sufficient quantities within the Union.
45 Under Article 28 TFEU, ‘the Union shall comprise a customs union which shall cover all trade in goods and which shall involve the prohibition between Member States of customs duties on imports and exports and of all charges having equivalent effect, and the adoption of a common customs tariff in their relations with third countries’. Therefore, save for derogations provided for in the Union provisions, the duties laid down in the common customs tariff must be paid in respect of all products entered for free circulation.
46 By virtue of Article 31 TFEU, Common Customs Tariff duties are fixed by the Council acting on qualified majority on the basis of a Commission proposal. The Council can therefore change or suspend, partially or in full, those duties (judgment of 14 November 1985, Texas Instruments v Hauptzollamt München-Mitte, 227/84, EU:C:1985:461, paragraph 12).
47 The suspensions approved under Article 31 TFEU are exceptions to the payment of the duties laid down in the common customs tariff, the general rule referred to in paragraph 45 above.
48 Furthermore, with regard to Article 2 of Regulation No 1344/2011, but also Article 2 of Regulation No 1387/2013, the Commission, on its own initiative or at the request of one or more Member States, is to review the suspensions granted on a regular basis.
49 In addition, the Commission’s communication defines the guiding principles and procedures to be followed by the Commission in drawing up its proposals to the Council.
50 For the purposes of paragraph 2.5.1 of the Commission’s communication, the aim of the tariff suspensions is to enable Union enterprises to use raw materials, semi-finished goods or components not available or produced within the Union, with the exception of finished products.
51 Thus, by virtue of paragraph 2.4.1 of the Commission’s communication, an autonomous tariff suspension of the Common Customs Tariff duties during a given period may be granted only in case of an unavailability of the products within the Union. Therefore, pursuant to paragraph 3.2 of the Commission’s communication, and unless the Union interest dictates otherwise, such a measure may not be requested where identical, equivalent or substitute products are manufactured in sufficient quantities within the Union. The same applies in cases where, in the absence of production in the Union, the measure could result in a distortion of competition between enterprises with regard to the finished products in which the goods in question are to be incorporated, or in products of a related sector.
52 Where there is some Union production of identical, equivalent or substitute products to the product to be imported, but such production is insufficient to meet the requirements of all the relevant processing or manufacturing companies, the Commission made provision in paragraph 3.3 of its communication that tariff quotas, that is to say, measures limited to the unavailable quantities, or partial tariff suspensions may be granted.
53 As regards examining the equivalence of imported and Union products, it is clear from paragraph 3.4 of the Commission’s communication that equivalence is assessed, as far possible, with reference to objective criteria, due account being taken of the essential chemical, physical and technical characteristics of each, their intended function and commercial use and, in particular, their mode of operation and their current or future availability on the Union market. Differences in price between the imported and Union products are not taken into account.
54 More particularly, with regard to the procedure leading to the adoption of tariff suspension measures, it must be noted that, under Title 4 of the Commission’s communication, entitled ‘Administrative Arrangements’, suspension requests are collected in each round so that new tariff suspensions and quotas and modifications enter into force either on 1 January or on 1 July of each year.
55 In the light of Title 4.1 of the Commission’s communication, entitled ‘Transmission of new requests’, it is clear that suspension requests are to be submitted to a central office in each of the Member States. Those offices must ensure that the applicants have provided all the necessary information in support of their requests and transmit these to the Commission. Applications for tariff suspensions will then be examined by the ETQG which, after establishing their appropriateness, assesses the proposed measures over at least three meetings per cycle. During the procedure, the Commission may, inter alia, ask the Member State concerned to provide any additional information which it considers essential. For the purposes of those meetings, the ETQG delivers an opinion to the Commission which submits its proposals to the Council.
56 More particularly, with regard to the transmission of objections, the procedure is specified in paragraph 4.5.1 et seq. of the Commission’s communication. Any objection to a current measure must be submitted in writing, at the latest, at the first ETQG meeting. Objections are submitted to a central office in each of the Member States. Member States must decide, after examining the requests to make sure that they fulfil the conditions, whether to submit them to the members of the ETQG and to the Commission. In addition, Member States have to take care that company contacts are initiated.
57 It must also be recalled that, by virtue of Article 2(1)(a) of Council Decision 2007/436/EC, Euratom of 7 June 2007 on the system of the European Communities’ own resources (OJ 2007 L 163, p. 17), customs duties contribute to the Union’s traditional own resources. Accordingly, the appropriateness of adopting a tariff suspension should be assessed in relation to the general interest of the Union.
58 Finally, the Court of Justice has already held that the Council had a broad discretion with regard to the adoption of suspension measures (judgments of 14 November 1985, Texas Instruments v Hauptzollamt München-Mitte, 227/84, EU:C:1985:461, paragraph 16, and of 18 March 1986, Ethicon v Hauptzollamt Itzehoe, 58/85, EU:C:1986:128, paragraph 18). The review by the Court of such decisions must therefore be limited to verifying whether the procedural rules and the duty to state reasons have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error of assessment or a misuse of powers.
59 As regards the assessment by the Court as to whether an act of an institution is vitiated by a manifest error of assessment, it must be stated that, in order to establish that that institution committed a manifest error in assessing complex facts such as to justify the annulment of that act, the evidence adduced by the applicant must be sufficient to make the factual assessments used in the act implausible. Without prejudice to that examination, it is not the Court’s role to substitute its assessment of complex facts for that made by the institution which adopted the decision (see, by analogy, judgment of 21 May 2015, Rubinum v Commission, T‑201/13, not published, EU:T:2015:311, paragraph 58 and the case-law cited). It must be added that the legality of a decision must be assessed in the light of the information available to the institution when the decision was adopted (see, to that effect, judgment of 10 July 1986, Belgium v Commission, 234/84, EU:C:1986:302, paragraph 16).
60 However, the limits to review by the Court do not affect its duty to establish whether the evidence relied on is factually accurate, reliable and consistent, whether that evidence contains all the information which must be taken into account in order to assess a complex situation, and whether it is capable of substantiating the conclusions drawn from it (see, by analogy, judgment of 21 May 2015, Rubinum v Commission, T‑201/13, not published, EU:T:2015:311, paragraph 59 and the case-law cited).
61 Accordingly, in the light of the foregoing considerations, in the present case the Court is asked to rule on the possible existence of a manifest error of assessment of the economic situation, on the part of the Council, in so far as it allowed the objection raised against the suspensions at issue (see, to that effect, judgment of 18 March 1986, Ethicon v Hauptzollamt Itzehoe, 58/85, EU:C:1986:128, paragraph 18).
62 In that respect, it must be held that the procedure that led to the adoption by the Council of Regulation No 1387/2013 corresponds to the procedure established by the Commission in its communication, referred to in paragraphs 54 to 56 above.
63 The Council ended the suspensions at issue on the initiative of the Federal Republic of Germany, which had received a request to that effect from the objector. The request from the Federal Republic of Germany, before being adopted by the Council, was examined by the ETQG, under the Commission’s aegis, after which the Commission submitted its proposal to the Council.
64 Moreover, it must be stated that the objector, in support of its objection, provided all the information and documents required by the Commission’s communication in Annex IV. Thus, for three of the products offered, the objector indicated the reasons why its products could replace the products imported by the applicant, and accompanied those claims with detailed technical files relating to the chemical, physical and technical characteristics of each. In addition, nothing in the file calls into question the reliability and consistency of the information provided by the objector in support of its objection.
65 None of the arguments relied on by the applicant is capable of calling into question the finding made in the preceding paragraph.
66 First, the applicant claims that the objector, in its form relating to the objection to the suspension applied to BPA, indicated that its production capacity in Switzerland came to 11 000 tonnes per annum, which it then expressly denied in its reply to the applicant’s questions. While it is true that the objector’s reply to the applicant’s questions may be confusing, it must, nevertheless, be accepted that at no point does the objector alter its statement relating to its production capacity in Switzerland of a product comparable to BPA. The objector merely adds a nuance to the terms used by the applicant in its comments on the objector’s objection. Where the applicant asked the objector to indicate whether it was in a position to supply comparable goods from Switzerland, the objector made it clear that it was doing so already, and also added that it was not the only undertaking to supply comparable products.
67 Secondly, the applicant is also wrong to claim that the objector, being aware that the BPA and the product offered were in no way ‘identical, equivalent or substitutable’, neither provided information on that product during the evaluation procedure, nor provided the clarifications sought on 10 May 2013 by the applicant. In that regard, it is clear from paragraph 4.5.3 of the Commission’s communication that the Commission may reject an objection when the requested sample has not been provided by the objector. The applicant has not demonstrated that the objector was asked for a sample of the Irganox L135 product in the present case. In addition, even if a sample of that product had been asked for, it was for the Commission to assess the consequences of such a failure, and therefore whether it was appropriate to reject the objection. As regards the clarifications sought by the applicant, the objector, which replied by email on 16 August 2013, had, in support of its objection, communicated all of the information required by the Commission’s communication and needed for the purposes of the examination by the institutions concerned of the objection raised. It appears that the applicant has not produced any evidence which casts doubt on the reliability of that information.
68 In those circumstances, it must be held that the Council has not committed any manifest error in concluding that the products at issue are identical, equivalent or substitute products.
69 The finding in paragraph 68 above cannot be called into question by the other arguments submitted by the applicant.
70 First, in the case of BPA, the applicant maintains that, in the form accompanying its objection to the suspensions at issue, the objector did not present its product either as ‘identical’, or as ‘equivalent’, or as a ‘substitute’ to the product imported by the applicant, but rather as ‘comparable’. Accordingly, higher standards of assessment are required in that case. It must be held that that reading of the form is incorrect and that consequently that argument must be rejected.
71 Although it is true the objector ticked the box entitled ‘other’ in the form accompanying its objection, it indicated that it did not base that objection either on the existence of identical goods currently produced in the Union or Turkey and available on the market, or on the existence of equivalent or substitute products currently obtainable within the Union or Turkey. Since the objector’s goods are produced in Switzerland, it could not base its objection on one of those two justifications and therefore, by elimination, it chose the option ‘other’. The fact that the objector indicates in the form that it is an undertaking which currently produces an identical, equivalent or substitute product in Switzerland, deleting and replacing the reference ‘within the Union or Turkey’ confirms that interpretation.
72 Furthermore, and still in connection with the objection form, the objector indicates, by way of explanatory comments, that it is not aware of any situation in which the product imported by the applicant could not be ‘replaced’ or ‘substituted’ by the product which it offers. Moreover, the applicant does not dispute that those terms were used by the objector in its objection relating to BPA. Therefore, it is clear that the objector regards the products at issue as ‘substitutable’.
73 Secondly, in the case of BNP, the applicant maintains in essence that the ETQG did not have sufficient information at its disposal to conclude that the product which it imported was identical to the product offered by the objector. In that regard, as the Council rightly points out, it must be found that the objector had provided all the information required in order to support its objection to the suspensions covering the products imported by the applicant. Although in its letter of 10 May 2013, the applicant does not accept that the products at issue are identical, it still does not provide any information in support of its claim. For the sake of completeness, the additional information requested by the applicant in that letter is, for the most part, clearly to be found in the technical files accompanying the objector’s objection.
74 The finding in paragraph 73 above, contrary to what the applicant claims, is not such as to infringe the rules on allocation of the burden of proof.
75 With regard to Title 4.5 of the Commission’s communication, entitled ‘Transmission of objections’, and Annex IV to that communication, it is for the objector who is raising an objection to existing suspensions to provide all the information and documents in support of its claim. Pursuant to paragraph 4.1.1 of the Commission’s communication, the Member State dealing with the request is to make sure that it fulfils the conditions of that communication and that the information provided in the request is accurate in all material aspects. It will then transmit the request to the Commission which, in the light of its remit, may ask the Member State concerned to provide any additional information relating to the request. If the information is not provided, the Commission may reject the request.
76 In the present case, as has already been stated in paragraph 64 above, the objector, for the purposes of its objection, provided all the documents required by Annex IV to the Commission’s communication. Since the Commission did not consider it necessary to request additional information, it therefore fell to the applicant itself to produce evidence of the unique character of the products which it imported. It is clear that the institutions concerned, having a broad discretion, could take the view that the applicant, relying on its own claims, had not provided sufficient relevant information to support its assertion that the imported products constituted unique products.
77 Thirdly, in the case of DMP, the applicant, relying on its own analysis, claims that the imported product and the product offered by the applicant are not identical, which was subsequently admitted by the objector in its reply of 4 July 2013. It must be held that at no point did the objector change its point of view with regard to its objection. On the contrary, it states that the product which it offers, although not identical, is equivalent to or a substitute for the product imported by the applicant in that it is adapted to the aim pursued by the applicant.
78 Fourthly, and as regards all of the products at issue, although the applicant claims that, due to stringent technical standards imposed by its customers and other external regulatory considerations, none of the products offered may be regarded as identical or equivalent to, or as substitutes for, the products covered by the suspensions at issue, the Court is not convinced by that argument. The same holds true for the applicant’s argument that the use of the objector’s products would have made it necessary to overhaul the blending and other manufacturing processes at the plant. It must be considered that the criteria used for the purposes of examining the equivalence of the products at issue, referred to in paragraph 53 above, were strictly delimited by the Commission in its communication. The requirements which the enterprises concerned must satisfy or the additional costs which they must meet do not in any way constitute a criterion that may be used when examining the equivalence of the products. That is particularly the case since the economic situation is assessed, as has been pointed out in paragraph 57, having regard to the general interest of the Union, and not that of the economic operators.
79 Furthermore, although by that argument the applicant claims that, due to the highly specialised nature of the products which it imports, a higher level of assessment was required, it is clear that, as the Council rightly maintains, the Commission’s communication makes no provision for any difference in treatment based on whether the imported substance is commonplace or highly specialised.
80 Similarly, with regard to the applicant’s argument that the reformulated additive packages, first, impaired the performance of the machines in which they were introduced, and secondly, infringed the environmental emission standards, it must be found that the applicant provides no support for its claims.
81 The fact that the objector did not inform the applicant whether it could use the products covered by the suspensions in its own facilities is irrelevant.
82 Fifthly, although the applicant claims that the Commission and the Council infringed the assessment criteria laid down in the Commission’s communication in that, in so far as they were based solely, in relation to BPA and DMP, on the potential or possible use of the products at issue in order to conclude that they were identical, equivalent or substitute products, that argument must also be rejected.
83 In that regard, it is true that, in its objection, the objector states that the products at issue are used as alternatives. However, and as the Commission rightly points out, although the chemical, physical and technical characteristics of the products are important, it must be held that, in the light of paragraph 3.4 of its communication, the equivalence of imported and Union products is assessed by also having regard to their function and commercial use, and, in particular, their mode of operation. Since the Commission does not provide for a hierarchy between the objectives laid down in its communication, there is no basis for concluding, as the applicant claims, that it is only when the products at issue are sufficiently similar from a chemical, physical and technical point of view that it is possible to take account of their function and commercial use. On the contrary, it must be held that the examination of the equivalence of imported products and Union products, as provided for in paragraph 3.4 of the Commission’s communication, consists of an overall assessment having regard to various objective criteria about which it cannot be decided beforehand, with no knowledge of the specifics of each given case, which will take precedence over the others.
84 Furthermore, the example given by the applicant in support of its submission that the criterion of commercial use is a more subjective criterion than the criterion of chemical, physical and technical characteristics is not convincing. The applicant illustrates that claim by submitting that producers of orange juice in the European Union would be permitted to prevent imported coffee from benefiting from any duty suspension on the ground that the market concerned may be defined as being the EU beverages market.It must be recalled that tariff suspensions apply only to raw materials, semi-finished products and components. No tariff suspension may be granted therefore where the products in question are finished products.
85 In addition, taking the view that the imported products and the Union products show strong chemical, physical and technical dissimilarities, the applicant submits that the ETQG could assess the equivalence of the products only using the criterion of the commercial use of those products. As has already been stated in paragraph 64 above, the objector, in support of its objection, had transmitted the chemical, physical and technical data required by the Commission’s communication. Accordingly, the ETQG could, inter alia, assess, on the basis of the essential chemical, physical and technical characteristics, the equivalence of the products in question, find them to be totally or partially identical, similar or substitute products in the light of that criterion, and proceed with its analysis having regard to the other criteria. In addition to the fact that the applicant does not support its claims with any concrete evidence, it does not demonstrate in any way how the products which it imports are so different from those of the objector that the ETQG therefore had to conclude that there was no chemical, physical or technical equivalence, and thus could not proceed further with its analysis. The applicant’s argument that the Council admitted in its defence that the imported products are unique or are the only ones which are fit for their purpose stems from a misinterpretation, given that the Council was simply referring to the applicant’s statements in its application.
86 It must be added, moreover, that it is certainly true that the Council, in its defence, stated that BPA and the product offered by the objector had not been presented by the objector as identical, equivalent or similar, but as competing. It therefore relied on the argument based on distortion of competition under the first indent of the second sentence of paragraph 3.2 of the Commission’s communication. However, apart from the fact that, as has already been observed in paragraphs 71 and 72 above, the objector regards those products as equivalent or substitute products, it must be pointed out that the Council withdrew its assertion in its rejoinder.Since the Council stated on a number of occasions in its defence that it regards the imported products and the products offered as identical, equivalent or substitute products, it is evident that, as regards BPA, the Council considers that it is dealing with, at least, substitute products.
87 In the light of all the foregoing considerations, and subject to the arguments referred to in paragraph 41 above which are addressed under the second plea in law (see paragraphs 97 to 102 below), the first plea in law must be dismissed as unfounded.
Second plea in law alleging infringement of essential procedural requirements and safeguards in adopting Regulation No 1387/2013
88 The applicant submits that a number of events should have compelled the Commission to reject the objections raised by the objector against maintaining the suspensions at issue in the present case. By not doing so, it infringed essential procedural requirements and safeguards, such as those laid down, in particular, in paragraph 4.5.3 of the Commission’s communication, which justifies the annulment of Regulation No 1387/2013 adopted by the Council following the proposal made by the Commission.
89 First, the applicant claims that the procedural rules, requiring that contact between the objector and the applicant be made in due time, were infringed. The applicant observes that, between the official communication from the applicant of its position to the objector on 10 May 2013 and the objector’s replies, 55 calendar days elapsed for DMP, 56 for BNP and 98 for BPA. Therefore, and despite the intervention of the German delegate, the deadline of 15 days set by the Commission in its communication was largely exceeded. The Commission, although fully informed of the situation, took no action to threaten the objector with rejection of its objections. By its inaction, the Commission contributed to the infringement of the essential procedural rules and safeguards governing the conduct of the procedure for evaluating objections.
90 Furthermore, those delays did not allow the Commission correctly to assess whether or not to maintain the contested suspensions. Since the objector had replied to only two of the three communications before the last ETQG meeting, the applicant did not have sufficient time to prepare a supplementary reply. Furthermore, the applicant claims, in essence, that that lack of cooperation reveals strategic conduct on the part of the objector.
91 Secondly, the applicant maintains that the objection concerning BPA contains misleading or inaccurate information. Under the applicable procedural rules, the ETQG and the Commission should have rejected the objection request.
92 In the reply, the applicant adds that the Council accepted all the objector’s objections at face value to the detriment of the applicant. Moreover, had the Commission exercised its powers, the objector could conceivably have been compelled to reply to the applicant’s clarification requests more promptly and more comprehensively, which would have enabled the facts to be clarified. Furthermore, the applicant could have requested conversion of some if its duty suspensions to tariff-free quota allowances. Finally, regardless of whether the period of 15 working days set by the Commission’s communication is flexible or mandatory, it must be noted that the institutions concerned did not exercise their power in any way. In any event, the Commission does not have unlimited flexibility to leave open issues unanswered on the part of the objector.
93 The Council, supported by the Commission, contends that that plea is unfounded.
94 As a preliminary point, it must be recalled that, with regard to the transmission of objections, the procedure is specified in paragraph 4.5.1 et seq. of the Commission’s communication. Any objection to a current measure must be submitted in writing, at the latest, at the first ETQG meeting. Objections are submitted to a central office in each of the Member States. Member States, after examining the objections to make sure that they fulfil the conditions, must decide whether to submit them to the members of ETQG and the Commission. In addition, Member States have to take care that company contacts are initiated.
95 Under paragraph 4.5.3 of the Commission’s communication, the Commission may reject an objection, in particular, when contacts between the opposing and requesting companies were not made in due time (approximately 15 working days) or the objection form contained misleading or inaccurate information. In addition, it is clear from paragraph 4.5.4 of the communication that the Commission may intervene only where the company objecting to a suspension and the one benefiting from it are not able to communicate. In that case, it will act as an impartial arbitrator. Finally, for the purposes of paragraph 4.5.5 of the communication, it falls to the Member State to take care that company contacts are initiated and to prove this if requested by the Commission or members of the ETQG.
96 In order to rule on the merits of that plea, it is necessary therefore to ascertain whether, as the applicant claims, its arguments are such as to establish that the procedure followed and which led the Council to adopt Regulation No 1387/2013 was not properly applied.
97 In the first place, as regards the time which elapsed between the applicant’s requests for additional information and the objector’s replies, it must be pointed out, at the outset, that, although the applicant contests the period within which the objector replied to the comments which it had made, it does not in any way dispute the Commission’s assertion that the first contact took place within the period laid down in paragraph 4.5.3 of the Commission’s communication.
98 As the Commission maintains in its statement in intervention, paragraph 4.5.3 of the Commission’s communication must be interpreted to the effect that the period of 15 working days applies only to the initiation of contact and not to subsequent exchanges between the objector and the enterprise concerned. The process of transmitting objections is controlled solely by the Member State to which the objection request was transmitted, and not by the Commission.
99 Therefore, since the contact was established between the parties concerned, and since the Commission was not invited to act as an impartial arbitrator, the late replies from the objector to the requests made by the applicant do not result in an infringement of the procedural requirements laid down in the Commission’s communication.
100 That finding is not called into question by the applicant’s argument that the ETQG and the Commission did not have the information necessary for the assessment of the objection raised by the Federal Republic of Germany on the initiative of the objector. In that regard, it must be pointed out that the applicant, in its first plea, has not demonstrated in any way that the ETQG, the Commission and, accordingly, the Council, on the basis of the information at their disposal, wrongly concluded that there were products which were identical or equivalent to, or capable of substitution for, the products covered by the contested suspensions. Similarly, when the applicant argues that it did not have sufficient time to provide further clarification with regard to the replies given by the objector, as a result of the lateness of those replies, it is clear that the applicant does not adduce any evidence to establish that, if it had more time, the institutions in question would have reached a different conclusion.
101 In the second place, as regards the allegedly misleading and inaccurate information transmitted by the objector in support of its objection, it has already been established in paragraph 66 above that the applicant was wrong to claim that that information, and more particularly the information relating to the capacity to produce BPA, was erroneous.
102 Furthermore, contrary to what the applicant claims, since the production capacity was sufficient to meet the needs of all of the relevant processing or manufacturing companies in the EU, the conditions for applying for tariff quotas, laid down in paragraph 3.3 of the Commission’s communication, were not satisfied in the present case. In addition, since that argument was formulated for the first time at the reply stage, it was raised out of time and must, accordingly, be declared inadmissible.
103 Consequently, the second plea must be rejected and the action dismissed in its entirety.
Costs
104 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must, in accordance with the forms of order sought by the Council and the Commission, be ordered to pay the costs.
105 In accordance with Article 138(1) of the Rules of Procedure, the institutions which have intervened in the proceedings are to bear their own costs. The Commission must therefore bear its own costs.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1. Dismisses the action;
2. Orders Lubrizol France SAS to bear its own costs and to pay those incurred by the Council of the European Union;
3. Orders the European Commission to bear its own costs.
Dittrich | Schwarcz | Tomljenović |
Delivered in open court in Luxembourg on 16 February 2017.