JUDGMENT OF THE GENERAL COURT (Fifth Chamber)
12 September 2013 (*)
(Application for annulment – Common Customs Tariff – Classification in the Combined Nomenclature – Tariff heading – Regulatory act entailing implementing measures – Inadmissibility)
In Case T‑380/11,
Anonymi Viotechniki kai Emporiki Etairia Kataskevis Konservon – Palirria Souliotis AE, established in Politika (Greece), represented by S. Pappas, lawyer,
applicant,
v
European Commission, represented by R. Lyal and L. Keppenne, acting as Agents,
defendant,
APPLICATION for annulment of Commission Implementing Regulation (EU) No 447/2011 of 6 May 2011 concerning the classification of certain goods in the Combined Nomenclature (OJ 2011 L 122, p. 63),
THE GENERAL COURT (Fifth Chamber),
composed of S. Papasavvas, President, V. Vadapalas and K. O’Higgins (Rapporteur), Judges,
Registrar: N. Rosner, Administrator,
having regard to the written procedure and further to the hearing on 23 January 2013,
gives the following
Judgment
Background to the dispute
1 Article 4 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended (‘the Customs Code’), provides:
‘For the purposes of this Code, the following definitions shall apply:
…
(5) “Decision” means any official act by the customs authorities pertaining to customs rules giving a ruling on a particular case, such act having legal effects on one or more specific or identifiable persons;
…
(17) “Customs declaration” means the act whereby a person indicates in the prescribed form and manner a wish to place goods under a given customs procedure;
…
(20) “Release of goods” means the act whereby the customs authorities make goods available for the purposes stipulated by the customs procedure under which they are placed;
… .’
2 Article 59(1) of that code provides:
‘All goods intended to be placed under a customs procedure shall be covered by a declaration for that customs procedure.’
3 Article 62 of the code provides:
‘(1) Declarations in writing shall be made on a form corresponding to the official specimen prescribed for that purpose. They shall be signed and contain all the particulars necessary for implementation of the provisions governing the customs procedure for which the goods are declared.
(2) The declaration shall be accompanied by all the documents required for implementation of the provisions governing the customs procedure for which the goods are declared.’
4 Under Article 63 of the Customs Code:
‘Declarations which comply with the conditions laid down in Article 62 shall be accepted by the customs authorities immediately, provided that the goods to which they refer are presented to customs.’
5 According to Article 73(1) of that code:
‘Without prejudice to Article 74, where the conditions for placing the goods under the procedure in question are fulfilled and provided the goods are not subject to any prohibitive or restrictive measures, the customs authorities shall release the goods as soon as the particulars in the declaration have been verified or accepted without verification. The same shall apply where such verification cannot be completed within a reasonable period of time and the goods are no longer required to be present for verification purposes.’
6 Under Article 74 of that code:
‘(1) Where acceptance of a customs declaration gives rise to a customs debt, the goods covered by the declaration shall not be released unless the customs debt has been paid or secured. However, without prejudice to paragraph 2, this provision shall not apply to the temporary importation procedure with partial relief from import duties.
(2) Where, pursuant to the provisions governing the customs procedure for which the goods are declared, the customs authorities require the provision of a security, the said goods shall not be released for the customs procedure in question until such security is provided.’
7 By the adoption of Council 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), as amended (‘the Combined Nomenclature Regulation’), the Council of the European Union established a complete nomenclature of goods being imported and exported in the European Union (‘the Combined Nomenclature’ or ‘CN’). That nomenclature is set out in Annex I to that regulation.
8 In order to ensure uniform application of the Combined Nomenclature in the European Union, the European Commission, with the assistance of a committee of representatives of the Member States, the Customs Code committee, may adopt a number of measures which are set out in Article 9 of the Combined Nomenclature Regulation, including measures enabling the Commission to adopt tariff classification regulations for particular goods in the Combined Nomenclature (first indent of Article 9(1)(a) of the Combined Nomenclature Regulation).
9 Under the first indent of Article 9(1)(a) of the Combined Nomenclature Regulation, the Commission adopted, on 6 May 2011, Implementing Regulation (EU) No 447/2011 concerning the classification of certain goods in the Combined Nomenclature (OJ 2011 L 122, p. 63) (‘the contested regulation’). The Annex to the contested regulation consists of a table divided into three columns. Column 1 of that table sets out the description of the goods, column 2, the classification in the Combined Nomenclature, and, column 3, the reasons.
10 Thus, Column 1 contains the following description of the goods:
‘Tinned stuffed vine leaves ready for consumption. The product is made of a mixture of rice, onion, soya oil, salt, citric acid, black pepper, mint and dill, wrapped in vine leaves.
The composition (percentage by weight):
– rice: approximately 50%
– vine leaves (grape leaves): approximately 15%
– onions: approximately 9%
– other ingredients: oil, salt, spices and water.’
11 Column 2 classifies the goods described under the tariff subheading corresponding to CN code 1904 90 10.
12 The goods classified under that subheading are subject to a customs duty rate of 8.3% plus EUR 46 per 100 kg of the goods.
13 The applicant, Anonymi Viotechniki kai Emporiki Etairia Kataskevis Konservon – Palirria Souliotis AE, is a manufacturer of traditional Greek food products. It imports stuffed vine leaves ready for consumption from third countries and, in particular, from China.
14 The applicant considers that those vine leaves should be classified under subheading 2008 99 99 or, alternatively, 2106 90 98 of the Combined Nomenclature.
Procedure and forms of order sought by the parties
15 By application lodged at the Registry of the General Court on 15 July 2011, the applicant brought the present application.
16 By separate document lodged at the Court Registry on 24 October 2011, the Commission raised an objection of inadmissibility pursuant to Article 114 of the Rules of Procedure of the General Court.
17 On 14 December 2011, the applicant lodged its observations on that objection of inadmissibility.
18 Acting upon a report from the Judge-Rapporteur, the General Court (Fifth Chamber) decided, pursuant to Article 114(3) of the Rules of Procedure, to open the oral procedure, limited to consideration of the objection of inadmissibility. By way of measures of organisation of procedure, in accordance with Article 64 of those rules, the Commission was requested to answer certain written questions, which it did within the period prescribed.
19 The parties presented oral argument and replied to questions put by the Court at the hearing on 23 January 2013.
20 The applicant claims that the Court should:
– dismiss the objection of inadmissibility;
– annul the contested regulation;
– order the Commission to pay the costs.
21 The Commission contends that the Court should:
– dismiss the application as inadmissible;
– order the applicant to pay the costs.
Law
22 Under Article 114(1) and (4) of the Rules of Procedure, if a party submits a separate document seeking a ruling from the Court on an objection of admissibility, the Court may then decide on the application or reserve its decision for the final judgment.
23 In the present case, the Court has decided to rule on the plea of inadmissibility submitted by the Commission without going to the substance of the case.
24 Under the fourth paragraph of Article 263 TFEU, ‘[a]ny natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures’.
25 The applicant claims that it has standing to bring proceedings because the contested regulation is a regulatory act which is of direct concern to it and does not entail implementing measures. In support of its claim relating to the absence of implementing measures, it states that that regulation expressly states that it is ’binding in its entirety and directly applicable in all Member States’ and that the addressees thereof, namely the national authorities, have no margin of discretion allowing them to classify the vine leaves at issue under a subheading other than that provided for by that regulation. It submits that ‘implementing measures, within the meaning of the fourth paragraph of Article 263 TFEU, are not all measures capable of being challenged in a national court, but only the ones which leave discretion to its addressees’.
26 The Commission contends, in essence, that the contested regulation, like all other tariff classification regulations, includes implementing measures capable of being challenged at national level. As to the remainder, the applicant acknowledges that it is not an addressee of the contested regulation, nor individually concerned by it. Therefore, in the present case, it does not have standing to bring proceedings under the fourth paragraph of Article 263 TFEU.
27 Firstly, it should be noted that, as the parties themselves agree, the contested regulation is a regulatory act within the meaning of the fourth paragraph of Article 263 TFEU. It is of general application, in that it applies to objectively determined situations and produces legal effects concerning categories of persons envisaged in general and in the abstract. Moreover, the contested regulation does not constitute a legislative act because it was not adopted in accordance with either the ordinary legislative procedure or the special legislative procedure within the meaning of paragraphs 1 to 3 of Article 289 TFEU (see, to that effect, Case T‑262/10 Microban International and Microban (Europe) v Commission [2011] ECR II‑0000, paragraph 21, and order of the General Court of 4 June 2012 in Case T‑381/11 Eurofer v Commission [2012] ECR II‑0000, paragraphs 43 and 44). The contested regulation is an act adopted by the Commission in the exercise of its implementing powers, on the basis of Article 9(1)(a) of the Combined Nomenclature Regulation.
28 As to whether the contested regulation entails implementing measures within the meaning of the fourth paragraph of Article 263 TFEU, it should be noted that that regulation aims to classify the goods described in column 1 of the table annexed thereto under the CN subheading referred to in column 2 of that table, in this case, subheading 1904 90 10.
29 The direct consequence of the contested regulation is to oblige the applicant, like any other importer of the goods concerned, when importing them into the customs territory of the European Union, to place them under CN subheading 1904 90 10 in the customs declaration which, in accordance with Article 59(1) of the Customs Code, it is obliged to draw up a specific customs procedure to assign to them.
30 However, that obligation in itself produces no real and definitive legal effects on the importer in question. In particular, it does not in itself entail a decision on the tariff classification indicated by the importer in its customs declaration, nor, consequently, on the amount of customs duties which it will potentially have to pay.
31 In that regard, it should be noted that, although it is true that the information necessary for the application of customs rules to goods is determined, not on the basis of the customs authorities’ findings, but on the basis of the information provided by the declarant, none the less, the customs declaration, which by its nature is a unilateral act, is not a ‘decision’ within the meaning of Article 4(5) of the Customs Code (Case C‑138/10 DP grup [2011] ECR I‑0000, paragraphs 34 and 35).
32 In fact, for a tariff classification regulation to produce real and definitive legal effects on the importer at issue, it is always necessary that national measures have been adopted.
33 The mere acceptance by the customs authorities of the customs declaration is not sufficient in that regard. Where those authorities accept a customs declaration, signed by the declarant or its representative, Article 63 of the Customs Code requires that they confine themselves to ascertaining that the purely formal requirements, laid down in Article 62 of that code, are complied with and that the goods at issue have been presented to customs. Consequently, when a customs declaration is accepted, those authorities do not decide on the accuracy of the information provided by the declarant, including, in particular, the tariff classification referred to by it, for which the latter assumes responsibility (see, to that effect, DP grup, cited in paragraph 31 above, paragraph 39). In other words, the acceptance of the customs declaration cannot, in itself, constitute a decision on the tariff classification.
34 After the acceptance of customs declarations made in writing, and even after release of the goods, the customs authorities may verify the information provided by the declarant, in accordance with Article 68 of the Customs Code. That verification may be in the form of a simple document check relating to the declaration and the documents accompanying it or an examination of the goods, possibly together with samples for analysis or for detailed examination.
35 If there is no verification of the customs declaration, the particulars of the latter are to be used for the purposes of applying the provisions governing the customs procedure chosen by the declarant and, in principle, the customs authorities are to release the goods at issue (see Article 71(2) and Article 73(1) of the Customs Code).
36 In that case, where no duties are payable, the release of the goods entails the agreement of the customs authorities as to the tariff classification indicated by the declarant.
37 Where duties are payable, goods may not be released unless the customs debt has been paid or secured (see Article 74 of the Customs Code). Generally, the amount of those duties is calculated by the customs authorities and is entered by those authorities in the accounting records or on any other equivalent medium (see Article 217(1) of the Customs Code), before being brought to the debtor’s attention (see Article 221(1) of the Customs Code). That communication therefore includes, in particular, a decision on the tariff classification used by the declarant.
38 In accordance with Article 221(2) of the Customs Code, the customs authorities may specify that the communication referred to in Article 221(1) shall not be made where the amount determined by them corresponds with the amount indicated by the declarant, for guidance, in the customs declaration, since it is understood that release of the goods at issue is then equivalent to that communication. In that case, release of the goods entails, in particular, the agreement of those authorities as to the tariff classification indicated by the declarant.
39 Where the customs authorities verify the customs declaration and do not find any omissions, they must release the goods and one of the situations set out in paragraphs 36 to 38 above will apply.
40 Conversely, if the verification produces results which are inconsistent with the particulars contained in the customs declaration, in particular as regards the tariff classification of the goods at issue, those results will serve as the basis for implementation of the provisions governing the customs procedure under which the goods are placed. Thus, the customs authorities might adopt a tariff classification different from that indicated in the customs declaration, which could lead to the payment of an amount of duties different from that indicated in that declaration. The communication, to the debtor, of the amount thus payable includes, in particular, a decision on the tariff classification stated in the customs declaration (see paragraph 37 above).
41 It should be added that the customs authorities may on occasion take samples of the goods imported for analysis or for detailed examination and may release those goods without waiting for the results of that analysis or examination. Where, in the light of those results, they subsequently conclude that those goods are to be classified under a subheading different from that indicated in the declaration and that, as a result, additional duties are payable, the notice requesting the debtor to pay them will entail a definitive decision as to the declared tariff classification. Likewise, it follows from Article 78(2) of the Customs Code that, after releasing the goods, the customs authorities may carry out an inspection subsequent to the customs declaration, which could also result in an amendment of the declared tariff classification and, therefore, in the payment of additional duties.
42 It follows that the classification of goods in the Combined Nomenclature effected by the regulations such as the regulation contested in the present case is liable to produce real and definitive legal effects on the situation of importers only through the intervention of individual measures taken by the national customs authorities following submission of the customs declaration, since those measures could, depending on the case, lead to the release of the goods or the communication to the debtor of the amount of duty payable.
43 Therefore, the contested regulation cannot be classified as an act which does not entail implementing measures, within the meaning of the fourth paragraph of Article 263 TFEU.
44 That finding cannot be called in question by the applicant’s argument that the contested regulation is binding in its entirety and directly applicable in all Member States, so that individuals are directly bound to apply it without the need for national implementing measures. That argument is relevant solely in the context of the assessment of the requirements for direct concern to the applicant. The need for an act which does not entail implementing measures laid down in the fourth paragraph of Article 263 TFEU constitutes a different condition from the requirement that the act be of direct concern to the applicant. In particular, it must be held that the question whether or not the contested regulation leaves a margin of discretion to the national authorities responsible for the implementing measures is irrelevant in ascertaining whether the contested regulation entails implementing measures (order in Eurofer v Commission, cited in paragraph 27 above, paragraph 59).
45 In the light of all the foregoing considerations, and of the fact that the applicant is neither the addressee of the contested regulation nor individually concerned by it, the applicant does not have capacity to bring an action for annulment of the contested regulation under the fourth paragraph of Article 263 TFEU. Accordingly, the action must be dismissed as inadmissible.
Costs
46 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, it must be ordered to bear its own costs and to pay those of the Commission, in accordance with the latter’s pleadings.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby:
1. Dismisses the application as inadmissible;
2. Orders Anonymi Viotechniki kai Emporiki Etairia Kataskevis Konservon – Palirria Souliotis AE to bear its own costs and to pay those of the European Commission.
Papasavvas | Vadapalas | O’Higgins |
Delivered in open court in Luxembourg on 12 September 2013.
[Signatures]