Case T-227/06

RSA Security Ireland Ltd

v

Commission of the European Communities

(Actions for annulment – Common Customs Tariff – Classification in the combined nomenclature – Person not individually concerned – Inadmissibility)

Summary of the Order

1.      Actions for annulment – Natural or legal persons – Measures of direct and individual concern to them

(Arts 230, fourth para., EC and 249, second para., EC; Commission Regulation No 888/2006)

2.      Common Customs Tariff – Classification of goods – Binding tariff information – Scope

(Council Regulation No 2913/92, Art. 12)

1.      An action for annulment brought by an importer of security devices designed to gain access to records stored on an automatic data-processing machine against Regulation No 888/2006 concerning the classification of certain goods in the Combined Nomenclature, which classifies such devices under heading 8543 89 97 of the Combined Nomenclature, is inadmissible.

That regulation is in the form of a measure of general application within the meaning of the second paragraph of Article 249 EC which applies to an objectively determined situation and produces legal effects with respect to categories of persons envisaged generally and in the abstract, and in particular importers of the product it describes. The mere fact that a measure of general application may have specific effects which differ according to the various persons to whom it applies is not such as to differentiate them in relation to all the other operators concerned where that measure is applied on the basis of an objectively determined situation.

Furthermore, the possibility of determining more or less precisely the number or even the identity of the persons to whom a measure applies does not mean that that measure must be regarded as being of individual concern to them, provided that it applies to them by virtue of an objective legal or factual situation defined by the measure in question. Moreover, the fact that certain operators are economically more affected by a measure than the other operators in the same sector is not sufficient for them to be regarded as individually concerned by that measure.

The fact that the classification in the Combined Nomenclature was triggered by an application from the applicant for a binding tariff information (‘BTI’), that the applicant is the only undertaking with a particular tariff classification and that the administrative procedures were conducted specifically in relation to its product do not reveal an attribute which is peculiar to the applicant, or circumstances which differentiate it and consequently distinguish it individually from the other economic operators potentially concerned by the contested regulation. In this respect, the fact that a Member State court decides to annul a BTI and to reclassify a given product under a certain heading of the Combined Nomenclature is not capable, of itself, of distinguishing individually the position in law of the operator who may rely on that decision. Although such a decision binds the customs authorities of that State, this does not mean that that decision amounts to a right to import the goods under a given Combined Nomenclature code which is, of itself, sufficient to distinguish it individually.

Lastly, it is only in exceptional circumstances that an applicant may be considered to be individually concerned, within the meaning of the fourth paragraph of Article 230 EC, by a tariff classification.

(see paras 58-63, 65, 77)

2.      The aim of the binding tariff information is to enable the operator to proceed with certainty where there are doubts as to the classification of goods in the existing customs nomenclature, thereby protecting him against any subsequent change in the position adopted by the customs authorities with regard to the classification of the goods. However, such information is not aimed at, nor can it have the effect of, guaranteeing that the tariff heading to which the operator refers will not subsequently be amended by a measure adopted by the Community legislature, since the limited validity of a binding tariff information is set by Article 12 of Regulation No 2913/92 establishing the Community Customs Code.

(see para. 64)