Language of document : ECLI:EU:T:2018:411

ORDER OF THE GENERAL COURT (Sixth Chamber)

2 July 2018 (*)

(Action for annulment — Customs union — Authorisation for inward processing — Risk of adverse effect on the essential interests of EU producers — Article 211(6) of Regulation (EU) No 952/2013 — Examination of the economic conditions — Scope of the Commission’s conclusions — Act not open to challenge — Inadmissibility)

In Case T‑577/17,

thyssenKrupp Electrical Steel GmbH, established in Gelsenkirchen (Germany),

thyssenKrupp Electrical Steel Ugo, established in Isbergues (France),

represented by M. Günes, lawyer

applicants,

v

European Commission, represented by J.-F. Brakeland and F. Clotuche‑Duvieusart, acting as Agents,

defendant,

ACTION under Article 263 TFEU for the annulment of the Commission’s alleged decision ostensibly contained in the minutes of the sixth meeting of the Customs Expert Group Section ‘Special Procedures other than transit’ of 2 May 2017 concluding that the essential interests of EU producers would not be adversely affected by an authorisation for inward processing of certain grain-oriented electrical steel products requested by Euro-Mit Staal BV,

THE GENERAL COURT (Sixth Chamber),

composed of G. Berardis, President, S. Papasavvas and O. Spineanu-Matei (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Order

 Background to the dispute

1        On 21 February 2017, Euro-Mit Staal BV (‘EMS’), in accordance with Article 211(1)(a) of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1) (‘the Customs Code’), submitted to the Dutch customs authorities an application for authorisation for inward processing of certain types of grain-oriented electrical steel originating in Japan (‘the application for authorisation’).

2        On 27 February 2017, the Dutch customs authorities, acting pursuant to Article 259(1) of Commission Implementing Regulation (EU) 2015/2447 of 24 November 2015 laying down detailed rules for implementing certain provisions of the Customs Code (OJ 2015 L 343, p. 558) (‘the implementing regulation’), transmitted the file to the European Commission, requesting it to examine the economic conditions, which they considered necessary, and ‘to conclude that [they were] met and [that] the authorisation [could] be granted’ (‘the request for examination’).

3        On 13 March 2017, the competent Commission services distributed among the members of the ‘Trade’ Contact Group (TCG) the file that had been transmitted by the Dutch authorities, which contained the contact details of the 27 other customs authorities within the European Union, and requested position papers from the Member States as well as information and observations from the EU producers of grain-oriented electrical steel.

4        On 30 March 2017, the Commission invited the representatives of the Members States in the customs expert group established by the Commission in accordance with Article 259(4) of the implementing regulation (‘the customs expert group’) to the sixth meeting of the Section ‘Special Procedures other than transit’ of that group (‘the sixth meeting’), during which the request for examination was to be considered.

5        On 2 May 2017, the sixth meeting took place, during which the request for examination was discussed.

6        At point 2 of the minutes of the sixth meeting (‘the minutes of 2 May 2017’), concerning the request for examination, reference is made (i) to the positions of representatives of certain Member States and that of the Commission on the application for authorisation; (ii) to the lack of consensus between the members of the group on the economic conditions and the voting procedure that followed (17 votes in favour, 10 votes against, 0 abstentions and 1 Member State not present) and (iii) to the Commission’s conclusion that the economic conditions were met.

7        On 2 May 2017, following the conclusion on the same day on the economic conditions, the Dutch customs authority issued the authorisation for inward processing to EMS for the period from 2 May 2017 to 1 May 2020.

8        On 12 July 2017, the applicants, thyssenkrupp Electrical Steel GmbH and thyssenkrupp Electrical Steel Ugo, submitted to the Dutch customs authority notices of opposition to the granting of the authorisation for inward processing to EMS. In their preliminary decisions of 11 December 2017 on those oppositions, the Dutch customs authorities declared that they were ‘obliged’ (‘verplicht’) to grant the authorisation requested ‘on the conditions imposed by the Commission’ because the authorities had to ‘take account of the conclusion reached about the economic conditions’.

 Procedure and forms of order sought

9        By application lodged at the Registry of the General Court on 25 August 2017, the applicants brought the present action.

10      By a separate document lodged at the Registry of the General Court on 6 November 2017, the Commission raised a plea of inadmissibility under Article 130 of the Rules of Procedure of the General Court. The applicants lodged their observations on that plea on 8 January 2018.

11      By document lodged at the Registry of the General Court on 9 November 2017, EMS requested leave to intervene in the present proceedings in support of the form of order sought by the Commission.

12      The applicants claim that the Court should:

–        annul the Commission’s conclusion that the essential interests of EU producers would not be adversely affected by an authorisation for inward processing of certain grain-oriented electrical steel products;

–        order the Commission to pay the costs.

13      In its plea of inadmissibility, the Commission contends that the Court should:

–        dismiss the action as being inadmissible;

–        order the applicants to pay the costs.

14      In their observations on the plea of inadmissibility, the applicants claim that the Court should:

–        dismiss the plea of inadmissibility;

–        prescribe new time limits for further steps in the proceedings to deal with the substance of the case;

–        annul the Commission’s conclusion that the essential interests of EU producers would not be adversely affected by an authorisation for inward processing of certain grain-oriented electrical steel products;

–        order the Commission to pay the costs.

 Law

15      Under Article 130 of the Rules of Procedure, on application by the defendant, the Court may decide on inadmissibility without going to the substance of the case. In the present case, as the Commission has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.

16      In support of the objection to admissibility, the Commission principally raises a plea of inadmissibility based on the absence of an act against which an action for annulment can be brought under Article 263 TFEU and, in the alternative, a plea of inadmissibility based on the absence of a direct and individual concern on the part of the applicants, as provided for in the fourth paragraph of Article 263 TFEU.

17      The applicants dispute the Commission’s arguments.

18      In support of the plea of inadmissibility raised as a principal argument, the Commission first submits that the applicants have not indicated any act that it has allegedly adopted. Second, it submits, in essence, that in the present case there is no challengeable act because (i) it has no decision-making power in customs matters and (ii) the conclusions on the economic conditions do not produce binding legal effects.

19      In response, the applicants state at the outset that, in paragraph 2 of the application, they precisely identified the act that is challenged as being the Commission’s conclusion and that the use of the word ‘conclusion’ corresponds to the terminology used by the implementing regulation. Next, the applicants refute the Commission’s arguments relating to the absence of a challengeable act on the ground, in essence, of an alleged change in the new customs legislation, seen from the perspective of the legislature as regards its role when examining the economic conditions and legal effects of its conclusions at the end of that examination. Finally, they criticise the Commission on the ground that it relied on the judgment of 11 May 2006, Friesland Coberco Dairy Foods (C‑11/05, EU:C:2006:312), which, they submit, is no longer relevant for the new customs legislation.

 Identification of an act of the Commission

20      As a preliminary point, it is necessary to clarify the Commission’s claim relating to the alleged absence of identification of an act of which it is allegedly the author.

21      In that respect, it should be pointed out that, contrary to what the Commission submits, (i) the applicants identified clearly, in paragraph 1 of the application and in the form of order sought, the act under challenge as being ‘the Commission’s conclusion that the essential interests of Union producers would not be adversely affected by an authorisation for inward processing of certain grain-oriented electrical steel products (GOES) [Ref. Ares(2017) 3010674 — 15/06/2017]’; and (ii) at paragraph 2 of the application, they indicated that the ‘challenged act of the Commission is contained in Commission document [Ref. Ares(2017) 3010674 dated 15 June 2017], which was published [on] or after 15 June 2017 in the online Register of Commission Expert Groups ... entitled “[M]inutes of the 6th meeting of the Customs Expert Group Section ‘Special Procedures other than transit’ (CEG/SPE/6)”’.

22      Although it is apparent from the minutes of 2 May 2017 that the wording of the conclusion reached at the 6th meeting differs from that mentioned in paragraphs 1 to 54 of the application, it is nevertheless clear that the subject matter of the present proceedings does indeed concern the Commission’s conclusion, reached on 2 May 2017 at the 6th meeting, in the examination of the economic conditions required by the Dutch customs authorities, according to which ‘the economic conditions [were] met’ (‘the contested conclusion’).

23      Consequently, the Commission errs in its assertion that the applicants have not identified the act of which it is allegedly the author.

 Existence of a challengeable act

24      It is settled case-law that any provisions adopted by the institutions of the European Union, whatever their form, which are intended to have binding legal effects, are regarded as ‘challengeable acts’, for the purposes of Article 263 TFEU (see judgment of 25 October 2017, Romania v Commission, C‑599/15 P, EU:C:2017:801, paragraph 47 and the case-law cited).

25      By contrast, any act not producing binding legal effects, such as preparatory acts, purely implementing measures, mere recommendations, opinions and, in principle, mere instructions, fall outside the scope of the judicial review provided for in Article 263 TFEU (see judgment of 12 September 2006, Reynolds Tobacco and Others v Commission, C‑131/03 P, EU:C:2006:541, paragraph 55 and the case-law cited; judgments of 17 July 2008, Athinaïki Techniki v Commission, C‑521/06 P, EU:C:2008:422, paragraph 42, and of 26 January 2010, Internationaler Hilfsfonds v Commission, C‑362/08 P, EU:C:2010:40, paragraph 52).

26      It would be otherwise only if the acts adopted in the course of the preparatory proceedings not only bore all the legal characteristics described in paragraph 25 above, but were themselves the culmination of a special procedure distinct from that intended to permit the EU institution, body, office or agency to take a decision on the substance of the case (judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 11).

27      Finally, it should be noted that, whilst measures of a purely preparatory character may not themselves be the subject of an action for annulment, any legal defects therein may be relied upon in an action directed against the definitive act for which they represent a preparatory step (judgment of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 12).

28      In order to ascertain whether a contested measure produces binding legal effects, it is necessary to look to its substance. Those effects must be assessed in accordance with objective criteria, such as the contents of that measure, taking into account, as appropriate, the context in which that measure was adopted and the powers of the institution which adopted it (see judgment of 25 October 2017, Romania v Commission, C‑599/15 P, EU:C:2017:801, paragraph 48 and the case-law cited).

29      It is in the light of those considerations that it is appropriate to examine whether the contested conclusion is an act against which an action may be brought, within the meaning of Article 263 TFEU.

30      To that end, as a preliminary step, the contested conclusion should be placed in its legal and factual context.

31      First of all, it should be noted that the inward processing procedure is a customs procedure which derogates from the ordinary rules of law, with economic implications. Therefore, as provided for in Article 211(1)(a) of the Customs Code, an authorisation from the customs authorities is required when using that procedure.

32      Among the cumulative conditions necessary to obtain an authorisation for inward processing, Article 211(4)(b) of the Customs Code provides that such authorisation is to be granted only if ‘the essential interests of Union producers would not be adversely affected ... (economic conditions)’.

33      Furthermore, it is apparent from Article 211(6) of the Customs Code that, following an application for an authorisation to place goods under the inward processing procedure, where evidence exists that the essential interests of EU producers are likely to be adversely affected by that authorisation, an examination of the economic conditions is to take place at EU level.

34      It should be noted that, although Article 211(6) the Customs Code provides that an examination of the economic conditions is to take place at EU level, it does not indicate what objective is being pursued by the establishment of the examination of the economic conditions at EU level or what the role of the Commission during that examination may be.

35      In that respect, it should, however, be made clear that, under the Commission’s implementing powers pursuant to Article 213 of the Customs Code, through the implementing regulation the Commission has established the procedural rules applicable to the examination of the economic conditions that takes place at EU level, as provided for in Article 211(6) the Customs Code.

36      Thus, in accordance with Article 259(1) of the implementing regulation, where, following an application for authorisation to place goods under the inward processing procedure, an examination of the economic conditions at EU level is required in accordance with Article 211(6) of the code, the customs authority competent for taking a decision on the application is required to transmit the file to the Commission without delay requesting such examination. Similarly, in accordance with Article 259(4) of the implementing regulation, the Commission is required to establish an expert group, composed of the representatives of the Member States, which must advise it on whether the economic conditions are fulfilled or not.

37      On the basis of Article 259(4) of the implementing regulation, the Commission established an expert group, which constitutes an informal advisory body operating on a permanent basis, subject to the horizontal rules established by Commission Decision C(2016) 3301 of 30 May 2016 establishing horizontal rules on the creation and operation of Commission expert groups, linked to Commission communication C(2016) 3300 of 30 May 2016 on the framework for Commission expert groups: horizontal rules and public register (‘horizontal rules on expert groups’).

38      In accordance with the horizontal rules on expert groups, the role of those groups is to advise the Commission, in particular on the application of EU laws, policies and programmes, on coordination and cooperation with the Member States.

39      On the basis of the horizontal rules on expert groups, the Commission adopted the ‘terms of reference’ of the Customs Expert Group and the rules of procedure of that group, in accordance with which the examination of the economic conditions is carried out in the meetings of the ‘Special Procedures other than transit’ Section of that group, called and chaired by the Commission. During those meetings, experts representing the Member States set out their positions on the application for authorisation and on the economic conditions and adopt an opinion on the economic conditions by consensus or, in the absence of consensus, they vote. In that respect, under Article 8(d) of those rules of procedure, when voting, the opinion results from the majority of the votes cast, abstentions not being taken into account. However, if the majority of the members present and voting are in favour of the application, the economic conditions are to be regarded as fulfilled. Article 8(e) of the rules requires Member States which vote against to give the reasons for their position (‘the examination procedure’). The Commission then, on the basis of that opinion, concludes whether or not the economic conditions are fulfilled.

40      It should be pointed out that, pursuant to Article 259(5) of the implementing regulation, the conclusion reached on the economic conditions are to be taken into account by the customs authority concerned and by any other customs authority dealing with similar applications or authorisations.

41      In the present case, as has been indicated in paragraphs 1 and 2 above, EMS submitted the application for authorisation in order to benefit from the exemption from import duties for certain types of grain-oriented electrical steel originating in Japan. The Dutch customs authorities, finding that the examination of the economic conditions at EU level was necessary, pursuant to Article 259(1) of the implementing regulation, transmitted the file to the Commission, requesting it to proceed with the examination.

42      It is common ground that the examination procedure (see paragraph 39 above) was followed in the present case.

43      It is apparent from the minutes of 2 May 2017 that, first, after an exchange of views with regard to the application for authorisation submitted by EMS, and the presentation by the Commission of three remarks on the specific characteristics of the authorisation applied for, the Customs Expert Group initially expressed the opinion that the case was to be considered as being a unique case and, second, expressed their opinion on the economic conditions. Next, in the absence of consensus, the representatives of the Member States voted and the Commission collected the results: 17 votes in favour, 10 votes against, 0 abstentions and 1 Member State not represented. Finally, at the end of the meeting, the Commission concluded that the economic conditions were fulfilled.

44      It is in the light of that factual and legal context that it is necessary, first, to establish the role played by the Commission during that examination and, second, to assess the scope of the conclusions which it reaches at the end of that examination.

 The role of the Commission during the examination of the economic conditions

45      As regards the role of the Commission during the examination of the economic conditions, it is not apparent from the legal context, as set out in paragraphs 31 to 40 above, that the Commission played a decisive role during that examination.

46      In that regard, it must be pointed out at the outset that it may not be presumed that the Commission has power to adopt binding decisions in the absence of a specific provision in the Treaty or in binding acts adopted by the institutions (see judgment of 13 December 1990, Nefarma v Commission, T‑113/89, EU:T:1990:82, paragraph 69 and the case-law cited).

47      Furthermore, it is apparent from case-law that views expressed by the Commission to the authorities of a Member State in areas in which the Commission has no power to adopt binding decisions are mere opinions with no legal effect (see judgment of 13 December 1990, Nefarma v Commission, T‑113/89, EU:T:1990:82, paragraph 68 and the case-law cited).

48      In that regard, first, although the Commission is empowered, under Article 212(c) of the Customs Code, to adopt delegated acts in order to determine the cases in which the economic conditions are deemed to be fulfilled, and although, under Article 213 of that code, it has had implementing powers conferred on it in order to specify the procedural rules relating to the examination of the economic conditions that takes place at EU level, neither the Customs Code nor Commission Delegated Regulation (EU) 2015/2446 of 28 July 2015 supplementing the Customs Code as regards detailed rules concerning certain provisions (OJ 2015 L 343, p. 1), nor the implementing regulation confer on it the power to adopt decisions, let alone decisions that are binding on the national authorities in that examination.

49      Next, the Customs Code does not in any way require the Commission itself to carry out the examination of the economic conditions. The role of the Commission during that examination is purely procedural in nature, designed to ensure uniform conditions for implementing the Customs Code, within the limits of the powers conferred on it by Article 213 of the code. That role is linked to the unique position enjoyed by the Commission to gather the relevant information and observations of the experts of the Member States as regards the manner in which the interests of EU producers could be affected by the requested authorisation, in order to make the information and observations available to the customs authorities concerned. Such cooperation is not to be confused with a provision for decisions taken at EU level in which the conclusions reached in an informal context would be binding on the Member States.

50      Finally, it is not apparent from the examination procedure put in place by the Commission under the implementing powers delegated pursuant to Article 213 of the Customs Code, as set out in paragraphs 39 and 43 above, whether, in addition to taking the votes of the representatives of the Member States in the Customs Expert Group and counting the votes cast, the Commission must express its opinion or has the slightest power to assess the question as to whether the economic conditions are fulfilled.

51      As regards the applicants’ argument concerning the different function that the Commission has, in light of the new customs legislation, in comparison with the committee of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) (‘the former Customs Code’), in that its function is not ‘merely to ensure close and effective cooperation’ but rather to ‘ensure uniform conditions’ for the implementation of the Customs Code, including with respect to the examination of the economic conditions, that argument should be rejected for the following reasons.

52      First, it is apparent from recital 5 of the Customs Code that the need to ensure uniform conditions for the implementation of the Customs Code justified the conferral of implementing powers on the Commission, under Article 213 of that code, in order to specify the procedural rules relating to the examination of the economic conditions that takes place at EU level. However, that provision does not in any way impose on the Commission a role other than that of coordinator of the phase of examination of the economic conditions.

53      Second, it is important to note that, even under the former Customs Code and Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of the former Customs Code (OJ 1993 L 253, p. 1), the examination of the economic conditions was also necessary for applications for authorisation that were similar to that in the present case. In that context, although the examination was carried out, at EU level, by the committee of the former Customs Code, which drew conclusions and assisted the Commission in accordance with Articles 247 to 249 of the former Customs Code, it was only a form of close and effective cooperation between the Member States and the Commission and those conclusions were intended to inform the customs authorities as to the economic conditions (judgment of 11 May 2006, Friesland Coberco Dairy Foods, C‑11/05, EU:C:2006:312, paragraphs 28 and 29).

54      Third, it is apparent from the legal and factual context set out in paragraphs 31 to 40 above that, in the new customs legislation, only the author of the conclusion made at the end of the examination of the economic conditions has changed, namely now the Commission, instead of the committee of the former Customs Code, with the result that the objective pursued by that examination, as has been set out in paragraph 53 above, remains, for its part, identical.

55      It must therefore be held that the Commission’s conclusions, made following the examination of the economic conditions that took place at EU level in accordance with Article 211(6) of the Customs Code, do not have a legal basis empowering the Commission to adopt a decision which could be binding on the customs authorities of the Member States and end up having a scope that is similar to that of the conclusions made by the committee of the former Customs Code.

56      Therefore, in the absence of any provision empowering the Commission to adopt a measure directing the competent national authority to follow its conclusions, the latter can be regarded only as having an informative value, the role of which is to assist the competent national authorities to take decisions, and not to impose constraints on them (see, to that effect, and by analogy, judgment of 11 May 2006, Friesland Coberco Dairy Foods, C‑11/05, EU:C:2006:312, paragraph 30).

 Scope of the conclusions made at the end of the examination of the economic conditions and the conclusions to be drawn therefrom by the customs authorities

57      As regards the scope of the conclusions made at the end of the examination of the economic conditions, it should be noted that, as has been set out in paragraph 40 above, the first subparagraph of Article 259(5) of the implementing regulation is worded as follows: ‘The conclusion reached on the economic conditions shall be taken into account by the customs authority concerned and by any other customs authority dealing with similar applications or authorisations’.

58      The wording of the first subparagraph of Article 259(5) of the implementing regulation reproduces verbatim that of Article 504(4) of Regulation 2454/93, as amended by, inter alia, Commission Regulation (EC) No 993/2001 of 4 May 2001 (OJ 2001 L 141, p. 1), (‘the former implementing regulation’).

59      In that respect, as regards the former implementing regulation, in the judgment of 11 May 2006, Friesland Coberco Dairy Foods (C‑11/05, EU:C:2006:312), the Court interpreted, inter alia, the phrase ‘the committee’s conclusion shall be taken into account by the customs authorities’ set out in Article 504(4) of the former implementing regulation as meaning that it was not apparent from the wording of that article that the committee’s conclusions were binding on the national customs authorities. The Court added that, according to the wording of that provision, the committee’s conclusion needed only to be taken into account by the customs authorities dealing with the application, as well as by any other customs authorities dealing with similar authorisations or applications. Furthermore, that provision did not by any means require the national customs authorities automatically to go along with the committee’s conclusion. The national customs authorities could disregard the conclusion adopted by the committee provided that they gave reasons for their decision in that respect (judgment of 11 May 2006, Friesland Coberco Dairy Foods (C‑11/05, EU:C:2006:312, paragraphs 26 and 27).

60      Consequently, in so far as the first subparagraph of Article 259(5) of the implementing regulation replaces, within the EU legal order, Article 504(4) of the former implementing regulation, the interpretation given by the Court in respect of that latter article is also valid for the interpretations of the former, given that those provisions may be regarded as equivalent (see, to that effect and by analogy, judgment of 14 September 2017, Nogueira and Others, C‑168/16 and C‑169/16, EU:C:2017:688, paragraph 45 and the case-law cited).

61      The authority attaching to judgments of the Court of Justice when, within the jurisdiction conferred upon it by Article 267 TFEU, it interprets a provision of EU law, explaining the meaning and scope of that provision as it should have been understood and applied since its entry into force, having regard in particular to the principles of continuity of the legal order and legal certainty, also applies to identical legislative solutions contained in subsequent legislation.

62      Furthermore, as has been set out in paragraph 54 above, it is not apparent from the new customs legislation that, as well as the change of the author of the conclusion made at the end of the examination of the economic conditions, the scope of that conclusion has been modified.

63      As indicated in paragraph 58 above, in so far as the expression ‘shall be taken into account by the customs authority’ set out in Article 504(4) of the former implementing regulation is repeated verbatim in the wording of Article 259(5) of the implementing regulation, there are no grounds on which to conclude that, in the new customs legislation, the scope of the conclusion on the economic conditions has changed. Moreover, if the new customs legislation had designed a system in which the national customs authorities are bound by the conclusions on the economic conditions made at EU level, the implementing regulation would have made express provision for this.

64      Accordingly, it follows from the foregoing that, as the Court held in the judgment of 11 May 2006, Friesland Coberco Dairy Foods (C‑11/05, EU:C:2006:312), as regards the conclusions of the Customs Code Committee made under the former legislation, Article 259(5) of the implementing regulation must be interpreted as meaning that the conclusions for which it provides do not have legally binding force and, therefore, are not binding on the national customs authorities. Only the final decision that those authorities adopt is in the nature of a definitive decision producing binding legal effects.

65      The argument put forward by the applicants relating to the relevance of the interpretation of Article 259(5) of the implementing regulation, contained in the administrative practice regarding the application of Article 211(6) of the Customs Code and Article 259 of the implementing regulation, adopted on 4 August 2016, following the first meeting of the Customs Expert Group Section ‘Special Procedures other than transit’ of 28 June 2016 and applicable from 1 September 2016 (‘the new administrative practice’), according to which the Commission’s conclusion on the economic conditions is binding on the competent customs authorities, cannot call into question the conclusion drawn in paragraph 64 above.

66      In that respect, as the Commission states, it should be noted that the new administrative practice merely replaces the administrative practice regarding the application of Articles 503 and 504 and Article 552(2) of Regulation No 2454/93, adopted at the 107th meeting of the Customs Code Committee Section ‘Customs Procedures with Economic Impact’ of 4 October 2005, as last adapted on 10 June 2013, according to which the conclusion on the economic conditions made by that committee was binding on the competent customs authorities. In so far as the interpretation in the latter administrative practice has not drawn the consequences of the judgment of 11 May 2006, Friesland Coberco Dairy Foods (C‑11/05, EU:C:2006:312), and conflicts with its scope, it could not serve as a valid basis for the interpretation contained in the new administrative practice.

67      Furthermore, as regards the value of the interpretations made by the committee of the former Customs Code, it should be noted that, although they constitute important means of ensuring the uniform application of the provisions on economic conditions by the customs authorities of the Member States and, as such, may be regarded as a valid aid to interpret the nature of the conclusions made on those economic conditions, they do not have legally binding force, with the result that it is necessary to consider whether their content is in accordance with the actual provisions of the implementing regulation and do not alter its scope (see, to that effect and by analogy, judgment of 15 February 1977, Dittmeyer, 69/76 and 70/76, EU:C:1977:25, paragraph 4).

68      As set out in paragraph 63 above, in so far as the implementing regulation reproduces verbatim, in the wording of Article 259(5), the expression ‘shall be taken into account by the customs authorities’ contained in Article 504(4) of the former implementing regulation, and does not provide that the national customs authorities are bound by those conclusions, it must be held that the interpretation contained in the new administrative practice is not in accordance with the actual provisions of the implementing regulation, as interpreted by the Court in the judgment of 11 May 2006, Friesland Coberco Dairy Foods (C‑11/05, EU:C:2006:312).

69      In the light of the foregoing, without it being necessary to analyse the applicants’ other arguments, it must be held that the contested conclusion does not have the character of a final or binding decision and constitutes a simple informative written expression of opinion relating to the economic conditions, provided to the Dutch customs authority in the context of the authorisation procedure initiated by EMS. Accordingly, the validity of the contested conclusion, which came prior to the adoption of a final decision by the competent authority, can be examined only indirectly during judicial review of the final decision expressed in the authorisation given by the Dutch customs authorities, before the national court (see, to that effect and by analogy, judgment of 11 May 2006, Friesland Coberco Dairy Foods (C‑11/05, EU:C:2006:312, paragraph 40).

70      It follows from all of the foregoing that, without it being necessary to examine the second objection to admissibility raised by the Commission, the plea of inadmissibility must be upheld in light of the absence of a challengeable act and the action must consequently be dismissed as being inadmissible.

71      Under those circumstances, in accordance with Article 142(2) of the Rules of Procedure, there is no longer any need to adjudicate on the application brought by EMS for leave to intervene in support of the form of order sought by the Commission.

 Costs

72      Under Article 135(1) of the Rules of Procedure, if equity so requires, the General Court may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his own costs, or even that he is not to be ordered to pay any costs. Furthermore, under Article 135(2) of the Rules of Procedure, the General Court may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if he has made the opposite party incur costs which the Court holds to be unreasonable or vexatious.

73      In the circumstances of the present case, the Court finds that, by facilitating the adoption of the administrative practices referred to in paragraphs 66 and 67 above, in the form of documents originating from the Commission, and in the absence of detailed information as to the legal scope of such practices, the Commission may have given the applicants the impression that the contested decision was binding on the competent customs authorities, with the result that they believed that they were justified in contesting the validity of that conclusion before the General Court.

74      Such circumstances constitute a ground justifying an order requiring the Commission to pay the expenses incurred by the applicants for the purpose of the proceedings.

75      Consequently, the Court finds that a fair assessment of the circumstances of the case requires that the Commission be ordered to pay, in addition to its own costs, the costs of the applicants.

76      Furthermore, under Article 144(10) of the Rules of Procedure, if, as here, the proceedings in the main case are concluded before the application to intervene has been decided, the applicant for leave to intervene and the main parties must each bear their own costs relating to the application to intervene. Given that, first, the application to intervene was not notified to the applicants and to the Commission and, therefore, they were not placed in a position to incur costs, and, second, only EMS could claim certain costs in connection with the application to intervene, EMS must be ordered to bear any such costs.

On those grounds,

THE GENERAL COURT (Sixth Chamber)

hereby orders:

The action is dismissed.There is no longer any need to adjudicate on Euro-Mit Staal BV’s application to intervene.In addition to bearing its own costs, the European Commission shall pay the costs incurred by thyssenkrupp Electrical Steel GmbH and thyssenkrupp Electrical Steel Ugo.Euro-Mit Staal BV shall bear its own costs relating to the application to intervene.


Luxembourg, 2 July 2018.


E. Coulon

 

      G. Berardis



Registrar

 

      President


*      Language of the case: English.