ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber)
3 December 2008 (*)
(Action for annulment – Common Customs Tariff – Issue of binding tariff information – Power of the national customs authorities – Non-actionable measure – Inadmissibility)
In Case T‑210/07,
RSA Security Ireland Ltd, established in Shannon (Ireland), represented by B. Conway, Barrister, and S. Daly, Solicitor,
applicant,
v
Commission of the European Communities, represented by S. Schønberg and D. Lawunmi, acting as Agents,
defendant,
APPLICATION for the annulment of a decision allegedly taken by the Commission and communicated to the applicant by email of the Irish Revenue Commissioners of 30 March 2007 concerning the classification of goods under a certain heading of the Combined Nomenclature,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),
composed of J. Azizi, President, E. Cremona (Rapporteur) and S. Frimodt Nielsen, Judges,
Registrar: E. Coulon,
makes the following
Order
Legal context
Combined Nomenclature
1 For the purposes of applying the Common Customs Tariff and facilitating the establishment of statistics of the Community’s external trade and other Community policies relating to imports and exports of goods, the Council, by adopting Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), established a complete nomenclature of goods being imported and exported in the Community (‘the Combined Nomenclature’ or ‘the CN’). That nomenclature is set out in Annex I to that regulation.
2 In order to ensure the uniform application of the Combined Nomenclature in the Community, the Commission, with the assistance of a committee of representatives of the Member States, may adopt a number of measures which are set out in Article 9 of Regulation No 2658/87.
3 Tariff headings 8471 and 8543 of the Combined Nomenclature are worded as follows:
– heading 8471: ‘[a]utomatic data-processing machines and units thereof; magnetic or optical readers, machines for transcribing data onto data media in coded form and machines for processing such data, not elsewhere specified or included’:
– heading 8543: ‘[e]lectrical machines and apparatus, having individual functions, not specified or included elsewhere in this chapter’.
Binding tariff information
4 Under Article 11(1) and Article 12 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1; ‘the Customs Code’), as amended, economic operators may obtain binding tariff information (‘BTI’) from customs authorities. That is information on the tariff classification of particular goods which binds those authorities vis-à-vis the applicant for, and/or holder of, the BTI.
5 Article 12 of the Customs Code states:
‘1. The customs authorities shall issue [BTI] or binding origin information on written request, acting in accordance with the committee procedure.
…
4. Binding information shall be valid for a period of six years in the case of tariffs … from the date of issue …
5. Binding information shall cease to be valid:
(a) in the case of tariff information:
(i) where a regulation is adopted and the information no longer conforms to the law laid down thereby;
…;
(iii) where it is revoked or amended in accordance with Article 9, provided that the revocation or amendment is notified to the holder.
…’
6 Article 6 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of the Customs Code (OJ 1993 L 253, p. 1, ‘the Regulation implementing the Customs Code’), as amended, states that ‘[a]pplications for binding information shall be made in writing, either to the competent customs authorities in the Member State or Member States in which the information is to be used, or to the competent customs authorities in the Member State in which the applicant is established’.
7 Article 8(1) of the Regulation implementing the Customs Code states:
‘In the case of [BTI], the customs authorities of the Member States shall, without delay, transmit to the Commission the following:
(a) a copy of the application for [BTI] …;
(b) a copy of the [BTI] notified …
… ’
8 Article 9(1) of the Regulation implementing the Customs Code states:
‘Where different binding information exists:
– the Commission shall, on its own initiative or at the request of the representative of a Member State, place the item on the agenda of the Committee for discussion at the meeting to be held the following month or, failing that, the next meeting,
– in accordance with the Committee procedure, the Commission shall adopt a measure to ensure the uniform application of nomenclature … rules … as soon as possible and within six months following the meeting referred to in the first indent.’
The facts
9 The applicant, RSA Security Ireland Ltd, is a company incorporated under the laws of Ireland which manufactures, imports and sells information processing security devices (‘the security devices’) in the European Community.
10 On 1 December 2006, following the launch on the European Market of a new and more advanced version of its ‘RSA SecurID authenticator’ product, the applicant requested the Irish Revenue Commissioners (‘the IRC’) to issue a BTI for its new device, ‘the SID 800’, which, in addition to the functionality and capabilities of the predecessor product, is connectable to the central unit of a data processing system via USB (Universal Serial Bus) connectivity and contains a second micro processor, the JAVA Card, which allows additional Random Access Memory. It requested in particular that that product be classified under tariff heading 8471 of the Combined Nomenclature as a unit of an automatic data processing system, and that Commission Regulation (EC) No 888/2006 of 16 June 2006 concerning the classification of certain goods in the Combined Nomenclature (OJ 2006 L 165, p. 6), which was the subject of an action for annulment brought by it in Case T‑227/06, not be applied by analogy.
11 On 6 December 2006 the IRC informed the applicant that its BTI application had been registered under the reference 06NT-14-1840.
12 On 25 January 2007 the IRC sent an email to Mr D.G., an official of Directorate General (DG) ‘Taxation and Customs’, International Affairs and Tariff matters section, in which, having explained that they had just received a BTI application for the product in question, they stated as follows:
‘The device which is the subject of this current application is similar to the device in [Regulation No] 888/2006 in that it consists of the same components ([a liquid crystal display], a [printed circuit board] and a battery encased in a plastic case). It differs from the device in [Regulation No] 888/2006 in that this current device can be connected to the computer via the USB port on the computer. When this device is connected to the computer, the [central processing unit] can read the 6-digit number which is on display at the time and then verify this number to authenticate the user. On verification, this device can be disconnected from the computer. As this device is connectable to the [central processing unit] we feel that Regulation [No] 888/2006 cannot be applied by analogy and that in fact classification in [sub]heading 8471 80 00 is appropriate in this case. In the circumstances we propose to issue BTI in this [sub]heading. Before doing so, however, we would be interested to know if the Commission have any views on the matter, bearing in mind that Regulation [No] 888/2006 is being challenged in the [Court of First Instance].’
13 Following a subsequent exchange of email correspondence, a telephone conversation took place on 16 March 2007 between the DG ‘Taxation and Customs’ official and the IRC regarding the classification of the product in question.
14 On the same day the DG ‘Taxation and Customs’ official sent an email to the IRC, in which he stated the following:
‘… [A]s mentioned on the phone: (1) [the] analogy [does] not apply; (2) [n]evertheless it is out of heading 8471 because of Note 5(E) to heading 84; (3) [i]t will be heading 8543; (4) [a]fter 01.01.2007 we should look also at 8523 (semiconductor media). One of the other example[s] mentioned as [an] ID card is [the] “smart [card]” so the question will be if these devices are not also semiconductor devices. I suppose this question will be raised when we discuss the update of regulations in our project group in Portugal next week; (5) US ruling for ID security cards ... classified as “smart card”.’
15 On 30 March 2007, at the applicant’s request, the IRC sent an email summarising an earlier telephone conversation between their officials and the applicant. In that email the IRC stated, inter alia, the following:
‘In our conversation, I told you that we had informally asked the European Commission to consider the classification of this device, and that the Commission felt that it should be classified at CN code 8543 70 90. The basis for the Commission’s view was that the device failed to comply with two of the criteria necessary for classification of the device as a unit of an [automatic data‑processing] machine (Notes 5(A)(ii) and 5(E) to Chapter 84 of the Harmonised System). Essentially, the Commission considered that the device is not freely programmable in accordance with the requirements of the user, and performs a specific function other than data processing. I told you that if [the IRC] was to issue BTI for the device now, we would be obliged to classify it in accordance with the Commission’s view. That classification would not be favourable to [the applicant]. In view of the fact that: [the applicant] has already appealed the classification of the SecureID device to the Appeals Commissioners and [is] currently taking a case to the [Court of First Instance] challenging [Regulation No 888/2006] which overturned the Appeals Commissioners’ ruling for that device, I felt it would be very likely that [the applicant] would lodge an appeal against a BTI for the new device and that a chain of events might be set in motion which would be onerous both to [the applicant] and to [the IRC]. Under the circumstances, I asked you to consider whether it was really necessary for [the IRC] to issue the BTI for the new device at this stage. You responded that [the applicant] would wish to have the BTI issued now and would use it to supplement the existing [Court of First Instance] case. While you agreed that an appeal at this stage would not be desirable, you felt that [the applicant] would wish to reserve its right to lodge an appeal at a later stage. I presume this means that an appeal would only be contemplated should [the applicant] be unsuccessful in [its] [Court of First Instance] case. I would appreciate if you could confirm that my understanding of our conversation is correct. On hearing from you, I will arrange to have the BTI issued promptly.’
Procedure and forms of order sought
16 The applicant brought this action by application lodged at the Registry of the Court of First Instance on 11 June 2007.
17 By a document lodged at the Registry on 26 September 2007, the Commission raised a preliminary objection of inadmissibility under Article 114(1) of the Rules of Procedure of the Court of First Instance. The applicant filed its observations on that objection on 12 November 2007. A regularised version of those observations was lodged on 4 December 2007.
18 In its application, the applicant claims that the Court should:
– annul the decision of the Commission as conveyed by the IRC on 30 March 2007 as it fails to classify its product for tariff classification purposes under the CN by reference to the objective characteristics and qualities of the product;
– declare that the customs classification of the product is to be determined pursuant to its characteristics, which fall within the terms of heading 8471 of the CN, or in the alternative, in position 8470 of the CN;
– declare that, in accordance with the accepted classification rules of goods for Community customs purposes, the essential characteristic of the product is not that of a security device or a means of access to records whether stored on an automatic data processing machine or otherwise;
– order the repayment of such customs duty as has been paid by the applicant in respect of the importation of the product into the Community since the coming into force of the Commission’s decision together with the payment of interest to the applicant;
– order the Commission to pay the applicant’s costs.
19 In its preliminary objection of inadmissibility, the Commission contends that the Court should:
– dismiss the application as inadmissible;
– order the applicant to bear the costs.
20 In its observations on the preliminary objection of inadmissibility, the applicant claims that the Court should:
– declare that the action is admissible;
– in the alternative, should the Court find that no act concerning the tariff classification of the product was adopted by the Commission, declare that the Commission’s statement in the email sent to the IRC on 16 March 2007 is devoid of any legal effect vis-à-vis both the IRC and the applicant;
– consequently, order the repayment of any customs duty paid by the applicant in compliance with the tariff classification statement of the Commission as communicated to it by the IRC.
Law
21 Under Article 114 of the Rules of Procedure, if a party so applies, the Court of First Instance may give a decision on admissibility without going to the substance of the case. Under Article 114(3), the remainder of the proceedings is to be oral, unless the Court decides otherwise. In the present case, the Court considers that it has sufficient information from the documents before it and that there is no need to open the oral procedure.
22 The Commission raises two pleas of inadmissibility. The first alleges that no decision was given in respect of the product in question and, in any event, that no legal effects flowed from that alleged decision capable of affecting the applicant’s interests and of bringing about a change in its legal position. By the second plea, raised in the alternative, the Commission contends that the action is inadmissible on the ground that the applicant is not directly and individually concerned within the meaning of the fourth paragraph of Article 230 EC
23 The Court will begin by examining the first plea of inadmissibility.
Arguments of the parties
24 The Commission contends that the application is manifestly inadmissible since it did not adopt a decision or any other formal act concerning the tariff classification of the product in question.
25 It states that, according to settled case-law, no action lies against non‑binding opinions and acts of an internal character which are not capable of having an effect upon the legal position of the applicant.
26 The IRC’s email of 30 March 2007 does not disclose any evidence of the existence of a Commission decision which could produce binding legal effects capable of affecting the applicant’s interests and of bringing about a distinct change in its legal position.
27 The Commission observes that that email emanates from the Irish customs authorities dealing with a BTI application lodged by the applicant and that it reports an exchange between those authorities and the Commission services which was conducted on an informal basis. Furthermore, reference is made therein to a view or an opinion expressed by one of the Commission’s officials and there has been no exchange of correspondence between the Commission and the applicant concerning the product in question.
28 Moreover, the applicant has failed to present any evidence of the existence of an express Commission decision and there is no basis for inferring, from the exchange of views between the Commission services and the IRC, that such a decision exists.
29 The Commission further observes that it is clear from the Customs Code, in particular Article 12(1) thereof, that the authorities responsible for issuing BTI are the national customs authorities and that the entire procedure for obtaining BTI is conducted at the national level. There is however nothing to prevent the Commission from expressing its opinion on issues that might be raised with it (Case 133/79 Sucrimex and Westzucker v Commission [1980] ECR 1229, paragraph 16). Such an opinion cannot be considered to have binding legal effects that are capable of bringing about a change in the legal position of an economic operator in the same position as the applicant in this case (order in Case 151/88 Italy v Commission [1989] ECR 1255, paragraph 22). The same applies as regards any legal effects that such an opinion can have on the Member State concerned. In the present case, since the Irish authorities remain subject to their obligations under the relevant legislation, they are not bound by an opinion expressed by a Commission official.
30 The applicant submits, first of all, that the IRC’s email of 30 March 2007 must be treated as the communication of a Commission decision concerning the tariff classification of its product. It challenges the Commission’s interpretation of that email, according to which in the present case there was no act intended to produce legal effects. It is manifestly clear from that email that the IRC rightly believed that they had no discretion in the matter and that they had to classify the product in question in accordance with the Commission’s view. The informal nature of the correspondence between the IRC and the Commission is irrelevant, since the email of 25 January 2007 clearly demonstrates the IRC’s intention to involve the Commission, not one of its officials, in the tariff classification process of the applicant’s product. According to the applicant, what matters is the nature and effect of the acts of the Commission – which is bound by the acts of its servants and agents, in particular through the exercise of delegated powers – on receipt of that email, and the substantive nature and effect of the response to that communication. In this regard the applicant argues that the Commission’s response in the email of 16 March 2007 was intended to have legal effect.
31 As regards the Commission’s assertion that the email of 30 March 2007 emanates solely from the IRC and concerns a decision which they were requested to make concerning the classification of the product in question, the applicant observes that the committee procedure provided for by the Customs Code does not require the Commission to communicate directly with a third party. The relevant question is therefore whether the Commission is bound by the informal or formal functioning of the committee. In this regard, Article 12 of the Customs Code establishes that a customs authority may issue a BTI ‘acting in accordance with the committee procedure’. Therefore, the IRC’s email of 25 January 2007 cannot be construed as anything other than the initiation of the committee procedure, whilst the email that the IRC sent to the applicant on 30 March 2007 is no more than the automatic implementation of the decision communicated in the Commission’s email of 16 March 2007, of which the applicant is the addressee.
32 As regards, moreover, the Commission’s claim that that email of 30 March 2007 reports an exchange between the IRC and the Commission services which was conducted on an informal basis and that it makes no reference to a formal process of any act adopted by the college of the Commission, the applicant further observes that recourse to the committee procedure is mandated under Article 12 of the Customs Code. Since no provision makes reference in that respect to ‘the college of the Commission’, the only plausible reference is to the ‘Commission’. According to the case‑law, it is not necessary that an action or measure be attributable to the college of the Commission as a whole or to one of its members in order for an action for annulment brought under Article 230 EC to be admissible. Such right of action can lie against a measure or act of an agent or employee of the Commission acting in an official capacity. A measure adopted following an informal procedure can therefore produce legal effects in circumstances where the Commission has power to act either through the Committee or further to Article 9 of the Regulation implementing the Customs Code.
33 The applicant also disputes the Commission’s argument that its opinion is not binding on the Member State concerned by an application for BTI. The Commission fails to examine whether in the circumstances of this case the committee procedure provided for in Article 12(1) of the Customs Code was implemented.
34 The reference to Sucrimex and Westzucker v Commission, paragraph 29 above, is irrelevant in the present case. First, the case which gave rise to that judgment falls within the scope of ‘export refunds’ and not of the BTI system and the uniform application of the customs nomenclature and, second, the Commission has specific authority and capacity to adopt a Community measure under Article 249 of the Customs Code and Article 9 of its implementing regulation.
35 The applicant expresses doubts as to whether the Commission has disclosed all exchanges and all written correspondence between its officials, the IRC and any third parties concerning the tariff classification of the product in question. In any event, the contents of the email of 25 January 2007 from the IRC, the Commission’s e-mail of 16 March 2007 in reply and the e-mail of 30 March 2007 from the IRC to the applicant are evidence collectively that action amounting to a decision had been taken by the Commission.
36 The email of 16 March 2007 is, in particular, a categorical communication of the appropriate tariff classification for the product in question and not, as the Commission claims, an opinion of its writer or of DG ‘Taxation and Customs’. This follows from the nature and content of the IRC’s email of 25 January 2007 and from the fact that, through that email, the IRC made a formal request to the Commission to indicate to them the appropriate tariff classification in the light of the action pending before the Court of First Instance seeking the annulment of Regulation No 888/2006 (Case T‑227/06). That conclusion is also based on the legal framework which governs the relationship between the applicant, the Commission and the IRC, and in particular on Article 12(1) of the Customs Code.
37 In this regard, the categorical nature of the statements contained in all the abovementioned correspondence indicates, as a matter of probability, that the provisions of Article 248 of the Customs Code were complied with in the present case.
38 The applicant also submits that it is entirely probable that the committee procedure was followed informally, at least, at the request of the IRC in their email of 25 January 2007. It is beyond doubt that, between the time at which a national authority decides to issue a BTI on its own initiative and that at which the Commission adopts a tariff classification regulation under Article 249(3) of the Customs Code, the national authorities consult Commission officials informally when deciding on the tariff classification of a certain product. In that context, the email of 16 March 2007 constitutes a binding pronouncement on tariff classification by the Commission, following the informal or formal implementation of the committee procedure.
39 In this context, the applicant submits that the term ‘measure’ in the aforementioned Article 249 includes a decision as well as a regulation. That means that a ‘measure’ is an independent concept of Community law when one considers the scope of the power and authority vested in the Commission by that article. The decision or direction of the Commission is in the present case such a measure and the clear and unambiguous language of the email communication of 16 March 2007 definitively states the position of the Commission as an act or decision. Tariff classification decisions arrived at by the Customs Code Committee by such means are regarded by all Member States as determinative of the issue, which explains why the IRC considered that they were bound by the opinion on the tariff classification of the product in question.
40 The applicant submits, lastly, that in the circumstances of the present case, the implementation of the committee procedure, whether on an informal or formal basis, amounts to an act of the Commission. Since Article 249(3)(a) of the Customs Code provides that the Commission is to adopt the measures envisaged if those measures are in accordance with the opinion of the committee, the Commission is constructively bound by the acts of the committee as, by analogy, the Commission was bound by a statement of a press officer of a Commissioner in the case which gave rise to Case T‑3/93 Air France v Commission [1994] ECR II‑121.
41 In the alternative, the applicant submits that the email of 16 March 2007 can reasonably be viewed as a measure adopted by the Commission pursuant to Article 9 of the Regulation implementing the Customs Code, which confers on it the power to adopt an appropriate measure to ensure the uniform application of the customs nomenclature where it finds that different BTI exists in respect of the same goods. Since in their email of 25 January 2007, the IRC advocated classification in a heading different from that chosen by the Commission, the latter was entitled to utilise that power. Such a measure need not necessarily be in the form of a regulation but can also take the form of an act, a decision or a direction.
42 Without disputing that the power to issue a BTI is vested in the IRC in the present case, the applicant observes, however, that in the light of the history of involvement between the parties and the specific circumstances of the present case, the IRC sought and obtained the involvement of the Commission in its official capacity regarding the uniform application of the Combined Nomenclature by means of the BTI system.
43 Furthermore, although the Commission describes the email of 16 March 2007 as informal, it does recognise it as a measure having legal effect in that it attempts to offer a legal basis for it, by referring in particular to classification by analogy and to Note 5(E) to heading 84 of the Combined Nomenclature.
44 In the final analysis, the applicant claims that its legal position has been affected and altered by virtue of the communications between the IRC and the Commission, since the IRC had accepted its application for classification of the product in question under heading 8471 and the Commission decided otherwise.
Findings of the Court
The subject‑matter of the action
45 It should be recalled that this action is directed against what the applicant claims to be a Commission decision classifying its product in heading 8543 of the CN, on the ground that it does not fulfil two of the criteria required to be classified in heading 8471 as a unit of an automatic data processing machine.
46 That alleged decision is said to have been notified by the email that the IRC sent to the applicant on 30 March 2007, in which the IRC stated, inter alia, that they had informally asked the Commission to examine the classification of the product in question and that the Commission had considered that it should be classified in heading 8543.
47 The Commission annexed to its preliminary objection of inadmissibility the email that it sent to the IRC on 16 March 2007, to which the latter made reference in that email of 30 March 2007. It is appropriate therefore to note that the Commission’s alleged decision contained in the email of 16 March 2007 took material form for the applicant only as an annex to the preliminary objection of inadmissibility, and therefore to interpret the applicant’s heads of claim as relating to that alleged decision, as brought to its knowledge on 30 March 2007.
Admissibility
48 In order to adjudicate on the merits of the preliminary objection of inadmissibility raised by the Commission, it should be recalled that, according to settled case-law, only measures which produce binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his legal position may be the subject of an action for annulment under Article 230 EC (Case 60/81 IBM v Commission [1981] ECR 2639, paragraph 9, and Case T‑112/99 M6 and Others v Commission [2001] ECR II‑2459, paragraph 35). Thus, an action for annulment is available in the case of all positions adopted by the institutions, whatever their nature or form, which are intended to have legal effects (see the order of 25 January 2007 in Case T‑55/05 Rijn Schelde Mondia France v Commission, not published in the ECR, paragraph 47 and the case‑law cited).
49 That is not the case with the email sent on 16 March 2007 by a Commission official to the IRC, the content of which was reproduced in the email that the IRC sent to the applicant on 30 March 2007.
50 It should be pointed out, first of all, that that email does not refer to any decision either of the Commission or of the Committee and that the applicant has failed to establish the contrary. Although the Commission official from whom the email emanated explained, in the context of an exchange of views sought by the IRC, the reasons which led him, on a personal and informal basis, to consider that the product in question should be classified under heading 8543 of the CN, the documents before the Court do not show, contrary to what the applicant claims, that such an explanation was the result of any decision taken in this regard by the Commission. Nor do the documents before the Court show that that email was preceded by even informal consultation of the Committee.
51 The fact that that email was sent in reply to the IRC’s email of 25 January 2007, which requested expressly that the Commission adopt a position in relation to the classification of the product in question, is not sufficient to regard it as an act in the form of a decision. It is apparent from their form and content as well as from the identity of their authors that those two emails merely represent the expression of an informal initiative taken by an official of the Irish authorities seeking clarification of the classification of the product in question and a reply, also informal, to that initiative, given by a Commission official with responsibility for customs issues. According to settled case-law, it is not sufficient that a letter is sent by a Community institution to its addressee – which in the present case was the IRC – in reply to a request made by that addressee for it to qualify as a decision for the purposes of Article 230 EC, thus opening the way for an action for annulment (Case T‑277/94 AITEC v Commission [1996] ECR II‑351, paragraph 50; orders in Case T‑130/02 Kronoply v Commission [2003] ECR II‑4857, paragraph 42, and Case T‑369/03 Arizona Chemical and Others v Commission [2005] ECR II‑5839, paragraph 56). That applies even more when such a reply emanates simply from a Commission official.
52 The content of the email of 16 March 2007 therefore remains that of an opinion given, on a purely personal basis, by a Commission official which in no way discloses the existence of a definitive and binding decision taken by the Commission in relation to the classification of the product in question. In this respect, it should furthermore be observed that, at point 4 of that email, it is stated that after 1 January 2007 the question also arises whether the ‘[security] devices are not also semiconductor devices’ which can be classified under heading 8523, since one of the examples of ID cards referred to is the ‘smart card’, and that that question would be raised at the project group meeting scheduled for the following week in Portugal. Even the author of the email does not appear, therefore, to have adopted a clear and definitive position with regard to the classification of the product in question, leaving open the question of its possible classification under heading 8523. Any other information in the IRC’s email of 30 March 2007 is irrelevant, since it emanates from the IRC and constitutes only their interpretation of the email at issue.
53 Moreover, as the Commission rightly notes, it has no power as far as concerns BTI. Under Article 12(1) of the Customs Code, it is the national authorities which issue that information. In that connection, it must also be recalled that, according to Article 6 of the Regulation implementing the Customs Code, applications for BTI are to be made either to the competent customs authorities in the Member State or Member States in which the BTI is to be used, or to the competent customs authorities in the Member State in which the applicant is established. Under Article 8 of that regulation, the customs authorities of the Member States are to transmit to the Commission a copy of the application for BTI and a copy of the BTI notified. According to Article 9 of that regulation, it is only where different BTI exists that the Commission is, on its own initiative or at the request of the representative of the Member State, to place the item on the agenda of the Committee for discussion and, in accordance with the Committee procedure, to adopt a measure to ensure the uniform application of nomenclature rules.
54 No provision of the Customs Code or of its implementing regulation provides therefore that the Commission is to adopt binding measures during the BTI issue procedure. That procedure is conducted only before the national authorities and is within the purview of those authorities. Once the BTI has been issued, the Commission’s involvement is envisaged only where there is a difference between two or more BTI, which was not in fact the case here.
55 It follows from well‑established case‑law that a view expressed by the Commission to a Member State in a situation in which the Commission has no power to take a decision cannot constitute a decision of such a nature as to form the basis of an action for annulment since it is neither capable of producing nor intended to produce any legal effects (order in Italy v Commission, paragraph 29 above, paragraph 22; order in Rijn Schelde Mondia France v Commission, paragraph 48 above, paragraph 48; see also, to that effect, Sucrimex and Westzucker v Commission, paragraph 29 above, paragraphs 16 to 18). It follows that in the present case, the opinion in the email of 16 March 2007 could not bind the IRC in any way, since they remained at liberty to decide how to respond to the application for BTI made by the applicant.
56 Moreover, the fact that a position adopted by the Commission is non-binding cannot be called into question, contrary to what the applicant submits, on the ground that the national authority to which the opinion was addressed voluntarily complied with it, as that is no more than the consequence of the cooperation between the Commission and the national bodies responsible for the application of Community law (orders of 5 September 2006 in Case T‑148/05 Comunidad autónoma de Madrid and Mintra v Commission, not published in the ECR, paragraph 43 and the case-law cited, and in Rijn Schelde Mondia France v Commission, paragraph 48 above, paragraph 48; see also, to that effect, Sucrimex and Westzucker v Commission, paragraph 29 above, paragraph 22).
57 It must also be pointed out that, although the Customs Code and its implementing regulation do not provide that the Commission is to give an opinion where the national authorities are the only authorities competent to decide on the issue of BTI, nothing prevents the Commission – and a fortiori one of its officials – from expressing an opinion in reply to a request made by the national authorities (see, to that effect and by analogy, the order in Rijn Schelde Mondia France v Commission, paragraph 48 above, paragraph 53).
58 In the final analysis, the stated intention of the IRC to comply, as regards the classification of the product in question, with the opinion of the Commission official – an intention which, as is apparent from the documents before the court, was not put into effect by the issue of BTI – does not stem from a Commission decision which had produced legal effects in relation to the IRC. It follows that any binding effects which would flow, for the applicant, from the acts of the national authorities – assuming that there were any – are not attributable to the Commission and cannot therefore be regarded as effects produced by the email of the Commission official of 16 March 2007.
59 The other arguments advanced by the applicant in support of its claims as to the admissibility of the action are not capable of casting doubt on that assessment.
60 As regards, in the first place, the argument that it is probable that the committee procedure was followed in the present case, it is sufficient to note that that argument has in no way been substantiated by the applicant and is still just an assumption. First, the committee procedure provides for a number of formalities and there is no indication in the documents before the Court that they were observed; second, in their email of 25 January 2007, the IRC make no reference, contrary to the applicant’s claims, to any intention to initiate such a procedure.
61 In any event, it must be noted that all the applicant’s arguments are based on an incorrect interpretation of Article 12(1) of the Customs Code. The applicant submits in essence that the request that the IRC made to the Commission by their email of 25 January 2007 gave rise to a committee procedure which led to the adoption of the position expressed by the Commission in its email of 16 March 2007, since, according to that provision, the customs authorities are to issue BTI ‘acting in accordance with the committee procedure’.
62 However, that interpretation is unfounded. The reference to the committee procedure in Article 12(1) of the Customs Code can only refer to the procedural rules for adopting provisions for the implementation of the Customs Code and not, as the applicant claims, to the use of the committee procedure as a procedure which must be observed when a customs authority intends to issue a BTI. The Customs Code does not lay down specific rules which must be complied with in order to obtain BTI and merely refers to the rules which are to be determined subsequently in accordance with the committee procedure. Those rules were set out in Title II of Part I of the Regulation implementing the Customs Code, which contains a number of provisions concerning BTI, including the provisions relating to the procedure for obtaining it (see, in particular, Chapter 2 of Title II of that regulation). In this respect, it must also be pointed out that, whereas most of the language versions of the provision at issue provide that ‘the customs authorities shall issue [BTI] … on written request [and following the rules determined] in accordance with the committee procedure’, the English version omits the words ‘following the rules determined’. According to the case-law, the need for a uniform interpretation of Community provisions necessitates that one language version should not be considered in isolation, but that it should be interpreted and applied in the light of the versions of all the official languages (see, to that effect, the judgment of 3 April 2008 in Case C-187/07 Dirk Endendijk, not yet published in the ECR, paragraphs 22 to 24 and the case-law cited), even if that means that the provision at issue has to be interpreted and applied in a manner at variance with the usual meaning of the words used in one or more language versions. It follows that Article 12(1) of the Customs Code cannot be relied upon by the applicant to argue that, in the present case, the Commission’s alleged tariff classification decision was adopted after the committee procedure. In that connection, the Court further observes that the provisions concerning the Customs Code Committee relied upon by the applicant were replaced by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 amending the Customs Code (OJ 2000 L 311, p. 17).
63 As regards, in the second place, the argument – advanced by the applicant in the alternative – that the email of 16 March 2007 can reasonably be viewed as a measure adopted by the Commission pursuant to Article 9 of the Regulation implementing the Customs Code, it should be stated that the power, vested in the Commission under that provision, to adopt an appropriate measure to ensure the uniform application of the customs nomenclature, is conditional on the Commission’s finding that different BTI exists in respect of the same goods. That is not the case here. Not only – as was pointed out at paragraph 58 above – had no BTI been issued by the IRC, but there is also nothing in the documents before the Court to show that the Commission found that different BTI exists in respect of the goods in question or similar goods. It must therefore be concluded that the conditions required for the Commission to adopt a measure were not fulfilled in the present case. In addition, it cannot be maintained, in the absence of any other act, that a simple email from a Commission official can be regarded as an appropriate measure to ensure the uniform application of the customs nomenclature.
64 In the light of all the above, this action must be dismissed as inadmissible, and there is no need to examine the objection of inadmissibility raised in the alternative by the Commission, or to adjudicate on the application for measures of organisation of procedure submitted by the applicant.
65 The second and third heads of claim put forward by the applicant in the alternative in its observations on the preliminary objection of inadmissibility are also inadmissible. In this respect, it is sufficient to recall that, according to well-established case‑law, the powers of the Community judicature under Article 230 EC do not include the power to make declarations (see, to that effect, the order in Case T‑468/93 Frinil v Commission [1994] ECR II-33, paragraphs 36 and 37) or to issue directions to a Community institution or a Member State (see, to that effect, the order in Joined Cases C‑199/94 P and C-200/94 P Pevasa and Inpesca v Commission [1995] ECR I‑3709, paragraph 24, and Case C-5/93 P DSM v Commission [1999] ECR I-4695, paragraph 36).
66 It follows that the action must be dismissed in its entirety as inadmissible.
Costs
67 Under Article 87(2) 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, and the Commission has applied for costs, the applicant must be ordered to pay the costs.
On those grounds,
THE COURT OF FIRST INSTANCE (Third Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. RSA Security Ireland Ltd shall pay the costs.
Luxembourg, 3 December 2008.