JUDGMENT OF THE COURT (Ninth Chamber)
20 June 2024 (*)
(Appeal – Commercial policy – Dumping – Imports of stainless steel cold-rolled flat products originating in India and Indonesia – Definitive anti-dumping duties – Action for annulment – Association of undertakings representing the interests of importers – Fourth paragraph of Article 263 TFEU – Condition that the applicant must be directly and individually concerned – Regulatory act entailing implementing measures)
In Case C‑252/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 17 April 2023,
European Association of Non-Integrated Metal Importers & distributors (Euranimi), established in Brussels (Belgium), represented by M. Campa, avvocato, P. Gjørtler, advokat, D. Rovetta and V. Villante, avvocati,
appellant,
the other party to the proceedings being:
European Commission, represented by G. Luengo and J. Zieliński, acting as Agents,
defendant at first instance,
THE COURT (Ninth Chamber),
composed of O. Spineanu-Matei, President of the Chamber, J.-C. Bonichot and L.S. Rossi (Rapporteur), Judges,
Advocate General: A. Rantos,
Registrar: A. Calot Escobar,
having regard to the written procedure,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1 By its appeal, European Association of Non-Integrated Metal Importers & distributors (Euranimi) asks the Court of Justice to set aside the order of the General Court of the European Union of 7 February 2023, Euranimi v Commission (T‑81/22, ‘the order under appeal’, EU:T:2023:57), by which the General Court dismissed Euranimi’s action for annulment of Commission Implementing Regulation (EU) 2021/2012 of 17 November 2021 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of stainless steel cold-rolled flat products originating in India and Indonesia (OJ 2021 L 410, p. 153; ‘the regulation at issue’).
Legal context
2 Article 5 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’), entitled ‘Definitions’, is worded as follows:
‘For the purposes of the [Customs] Code, the following definitions shall apply:
…
(18) “customs debt” means the obligation on a person to pay the amount of import or export duty which applies to specific goods under the customs legislation in force;
…’
3 Under Article 6(1) and (4) of the Customs Code:
‘1. All exchanges of information, such as declarations, applications or decisions, between customs authorities and between economic operators and customs authorities, and the storage of such information, as required under the customs legislation, shall be made using electronic data-processing techniques.
…
4. By way of derogation from paragraph 1, the [European] Commission may adopt in exceptional cases decisions allowing one or several Member States to use means for the exchange and storage of information other than electronic data-processing techniques.
Such a decision on a derogation shall be justified by the specific situation of the Member State requesting it and the derogation shall be granted for a specific period of time. The derogation shall be reviewed periodically and may be extended for further specific periods of time upon further application by the Member State to which it is addressed. It shall be revoked where no longer justified.
The derogation shall not affect the exchange of information between the Member State to which it is addressed and other Member States nor the exchange and storage of information in other Member States for the purpose of the application of the customs legislation.’
4 Article 46(1) to (4) of that code provides:
‘1. The customs authorities may carry out any customs controls they deem necessary.
Customs controls may in particular consist of examining goods, taking samples, verifying the accuracy and completeness of the information given in a declaration or notification and the existence, authenticity, accuracy and validity of documents, examining the accounts of economic operators and other records, inspecting means of transport, inspecting luggage and other goods carried by or on persons and carrying out official enquiries and other similar acts.
2. Customs controls, other than random checks, shall primarily be based on risk analysis using electronic data-processing techniques, with the purpose of identifying and evaluating the risks and developing the necessary counter-measures, on the basis of criteria developed at national, [European] Union and, where available, international level.
3. Customs controls shall be performed within a common risk management framework, based upon the exchange of risk information and risk analysis results between customs administrations and establishing common risk criteria and standards, control measures and priority control areas.
Controls based upon such information and criteria shall be carried out without prejudice to other controls carried out in accordance with paragraph 1 or with other provisions in force.
4. Customs authorities shall undertake risk management to differentiate between the levels of risk associated with goods subject to customs control or supervision and to determine whether the goods will be subject to specific customs controls, and if so, where.
The risk management shall include activities such as collecting data and information, analysing and assessing risk, prescribing and taking action and regularly monitoring and reviewing that process and its outcomes, based on international, Union and national sources and strategies.’
5 Article 48 of that code is worded as follows:
‘For the purpose of customs controls, the customs authorities may verify the accuracy and completeness of the information given in a customs declaration, temporary storage declaration, entry summary declaration, exit summary declaration, re-export declaration or re-export notification, and the existence, authenticity, accuracy and validity of any supporting document and may examine the accounts of the declarant and other records relating to the operations in respect of the goods in question or to prior or subsequent commercial operations involving those goods after having released them. Those authorities may also examine such goods and/or take samples where it is still possible for them to do so.
Such controls may be carried out at the premises of the holder of the goods or of the holder’s representative, of any other person directly or indirectly involved in those operations in a business capacity or of any other person in possession of those documents and data for business purposes.’
6 Under Article 79(1) and (2) of that code:
‘1. For goods liable to import duty, a customs debt on import shall be incurred through non-compliance with any of the following:
(a) one of the obligations laid down in the customs legislation concerning the introduction of non-Union goods into the customs territory of the Union, their removal from customs supervision, or the movement, processing, storage, temporary storage, temporary admission or disposal of such goods within that territory;
(b) one of the obligations laid down in the customs legislation concerning the end-use of goods within the customs territory of the Union;
(c) a condition governing the placing of non-Union goods under a customs procedure or the granting, by virtue of the end-use of the goods, of duty exemption or a reduced rate of import duty.
2. The time at which the customs debt is incurred shall be either of the following:
(a) the moment when the obligation the non-fulfilment of which gives rise to the customs debt is not met or ceases to be met;
(b) the moment when a customs declaration is accepted for the placing of goods under a customs procedure where it is established subsequently that a condition governing the placing of the goods under that procedure or the granting of a duty exemption or a reduced rate of import duty by virtue of the end-use of the goods was not in fact fulfilled.’
7 Article 87 of the Customs Code provides:
‘1. A customs debt shall be incurred at the place where the customs declaration or the re-export declaration referred to in Articles 77, 78 and 81 is lodged.
In all other cases, the place where a customs debt is incurred shall be the place where the events from which it arises occur.
If it is not possible to determine that place, the customs debt shall be incurred at the place where the customs authorities conclude that the goods are in a situation in which a customs debt is incurred.
2. If the goods have been placed under a customs procedure which has not been discharged or when a temporary storage did not end properly, and the place where the customs debt is incurred cannot be determined pursuant to the second or third subparagraphs of paragraph 1 within a specific time-limit, the customs debt shall be incurred at the place where the goods were either placed under the procedure concerned or were introduced into the customs territory of the Union under that procedure or were in temporary storage.
3. Where the information available to the customs authorities enables them to establish that the customs debt may have been incurred in several places, the customs debt shall be deemed to have been incurred at the place where it was first incurred.
4. If a customs authority establishes that a customs debt has been incurred under Article 79 or Article 82 in another Member State and the amount of import or export duty corresponding to that debt is lower than EUR 10 000, the customs debt shall be deemed to have been incurred in the Member State where the finding was made.’
8 Article 101(1) and (2) of that code provides:
‘1. The amount of import or export duty payable shall be determined by the customs authorities responsible for the place where the customs debt is incurred, or is deemed to have been incurred in accordance with Article 87, as soon as they have the necessary information.
2. Without prejudice to Article 48, the customs authorities may accept the amount of import or export duty payable determined by the declarant.’
9 Under Article 102 of the Customs Code:
‘1. The customs debt shall be notified to the debtor in the form prescribed at the place where the customs debt is incurred, or is deemed to have been incurred in accordance with Article 87.
The notification referred to in the first subparagraph shall not be made in any of the following cases:
(a) where, pending a final determination of the amount of import or export duty, a provisional commercial policy measure taking the form of a duty has been imposed;
(b) where the amount of import or export duty payable exceeds that determined on the basis of a decision made in accordance with Article 33;
(c) where the original decision not to notify the customs debt or to notify it with an amount of import or export duty at a figure less than the amount of import or export duty payable was taken on the basis of general provisions invalidated at a later date by a court decision;
(d) where the customs authorities are exempted under the customs legislation from notification of the customs debt.
2. Where the amount of import or export duty payable is equal to the amount entered in the customs declaration, release of the goods by the customs authorities shall be equivalent to notifying the debtor of the customs debt.
3. Where paragraph 2 does not apply, the customs debt shall be notified to the debtor by the customs authorities when they are in a position to determine the amount of import or export duty payable and take a decision thereon.
However, where the notification of the customs debt would prejudice a criminal investigation, the customs authorities may defer that notification until such time as it no longer prejudices the criminal investigation.
4. Provided that payment has been guaranteed, the customs debt corresponding to the total amount of import or export duty relating to all the goods released to one and the same person during a period fixed by the customs authorities may be notified at the end of that period. The period fixed by the customs authorities shall not exceed 31 days.’
10 Article 103 of that code provides:
‘1. No customs debt shall be notified to the debtor after the expiry of a period of three years from the date on which the customs debt was incurred.
2. Where the customs debt is incurred as the result of an act which, at the time it was committed, was liable to give rise to criminal court proceedings, the three-year period laid down in paragraph 1 shall be extended to a period of a minimum of five years and a maximum of 10 years in accordance with national law.
3. The periods laid down in paragraphs 1 and 2 shall be suspended where:
(a) an appeal is lodged in accordance with Article 44; such suspension shall apply from the date on which the appeal is lodged and shall last for the duration of the appeal proceedings; or
(b) the customs authorities communicate to the debtor, in accordance with Article 22(6), the grounds on which they intend to notify the customs debt; such suspension shall apply from the date of that communication until the end of the period within which the debtor is given the opportunity to express his or her point of view.
4. Where a customs debt is reinstated pursuant to Article 116(7), the periods laid down in paragraphs 1 and 2 shall be considered as suspended from the date on which the application for repayment or remission was submitted in accordance with Article 121, until the date on which the decision on the repayment or remission was taken.’
11 Under Article 104(1) of the Customs Code:
‘The customs authorities referred to in Article 101 shall enter in their accounts, in accordance with the national legislation, the amount of import or export duty payable as determined in accordance with that Article.
The first subparagraph shall not apply in cases referred to in the second subparagraph of Article 102(1).’
12 Article 172(1) of that code is worded as follows:
‘Customs declarations which comply with the conditions laid down in this Chapter shall be accepted by the customs authorities immediately, provided that the goods to which they refer have been presented to customs.’
13 Article 188 of that code provides:
‘The customs authorities may, for the purpose of verifying the accuracy of the particulars contained in a customs declaration which has been accepted:
(a) examine the declaration and the supporting documents;
(b) require the declarant to provide other documents;
(c) examine the goods;
(d) take samples for analysis or for detailed examination of the goods.’
14 The first subparagraph of Article 194(1) of that code provides:
‘Where the conditions for placing the goods under the procedure concerned are fulfilled and provided that any restriction has been applied and the goods are not subject to any prohibition, the customs authorities shall release the goods as soon as the particulars in the customs declaration have been verified or are accepted without verification.’
Background to the dispute
15 The background to the dispute was set out by the General Court in paragraphs 2 to 10 of the order under appeal as follows:
‘2 Following a complaint lodged on 17 August 2020 by the European Steel Association (Eurofer), which represents more than 25% of the total EU production of stainless steel cold-rolled flat products (“the product concerned in the present case”), the European Commission, pursuant to Article 5 of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21), as amended [by Regulation (EU) 2018/825 of the European Parliament and of the Council of 30 May 2018 (OJ 2018 L 143, p. 1)] (“the basic regulation”), announced, on 30 September 2020, the initiation of an anti-dumping proceeding concerning imports into the European Union of stainless steel cold-rolled flat products originating in India and Indonesia.
3 Pursuant to Section 5.2 of the Notice of Initiation of an anti-dumping proceeding concerning imports of stainless steel cold-rolled flat products originating in India and Indonesia (OJ 2020 C 322, p. 17), the Commission invited all interested parties to submit their observations on the complaint and the initiation of the investigation. In addition, the Commission expressly informed known importers and users of the product concerned in the present case in the European Union, of the initiation of the investigation and invited them to participate.
4 On 1 March 2021, the Commission, pursuant to Article 14(5) of the basic regulation, adopted Implementing Regulation (EU) 2021/370 making imports of stainless steel cold-rolled flat products originating in India and Indonesia subject to registration (OJ 2021 L 71, p. 18).
5 In accordance with Article 19a(1) of the basic regulation, the Commission communicated to the parties, on 30 April 2021, a summary of the proposed provisional duties and details of the calculation of the dumping margins and the margins adequate to remove the injury to the Union industry and invited interested parties to submit any observations they might have on the calculations until 5 May 2021.
6 On 27 May 2021, the Commission adopted Implementing Regulation (EU) 2021/854 imposing a provisional anti-dumping duty on imports of stainless steel cold-rolled flat products originating in India and Indonesia (OJ 2021 L 188, p. 61) (“the provisional regulation”).
7 From 11 June 2021, the [appellant] expressed its views on several occasions during the remainder of the anti-dumping proceeding in written observations, including those made in response to observations provided by other interested parties, and oral observations at two hearings.
8 On 16 August 2021, the Commission informed all interested parties of the essential facts and considerations on the basis of which it intended to impose a definitive anti-dumping duty on imports of the product concerned in the present case originating in India and Indonesia.
9 Following that communication, the [appellant] submitted observations and took part in a hearing.
10 On 17 November 2021, the Commission adopted the [regulation at issue].’
The procedure before the General Court and the order under appeal
16 By application lodged at the Registry of the General Court on 11 February 2022, Euranimi brought an action for annulment of the regulation at issue.
17 By separate document lodged at the Registry of the General Court on 16 May 2022, the Commission raised an objection of inadmissibility to that action. On 28 June 2022, Euranimi lodged its observations on that objection.
18 By the order under appeal, the General Court dismissed that action as inadmissible. First, the General Court held that Euranimi was not entitled to bring its action as representative of the interests of its members. Neither the members of Euranimi nor Euranimi itself, in its capacity as their representative, were individually concerned by the regulation at issue (paragraphs 39 to 73 of that order). In addition, that regulation entailed implementing measures vis-à-vis Euranimi’s members (paragraphs 87 to 103 of that order). Second, the General Court held that Euranimi was not entitled to bring its action for the purpose of defending its own interests either (paragraphs 105 to 114 of that order).
Forms of order sought
19 By its appeal, Euranimi claims that the Court should:
– declare the present appeal admissible;
– set aside the order under appeal and declare the action at first instance admissible;
– refer the case back to the General Court for it to decide on the merits of that action; and
– order the Commission to pay the costs of the present proceedings and of the proceedings at first instance.
20 The Commission contends that the Court should:
– dismiss the appeal as unfounded; and
– order Euranimi to pay the costs of the present proceedings.
The appeal
21 In support of its appeal, Euranimi puts forward three grounds of appeal. The first ground of appeal alleges an error of law in the interpretation of the fourth paragraph of Article 263 TFEU, more particularly of the requirement of direct and individual concern to the applicant, and an erroneous characterisation of the facts. The second ground of appeal alleges an error of law in the interpretation of the fourth paragraph of Article 263 TFEU, more particularly of the concept of regulatory act which does not entail implementing measures, an erroneous characterisation of the facts and a distortion of the evidence. The third ground of appeal alleges an erroneous characterisation of the facts and a distortion of the evidence.
The first ground of appeal
Arguments of the parties
22 By its first ground of appeal, Euranimi complains that the General Court erred in law in its interpretation of the fourth paragraph of Article 263 TFEU and mischaracterised the facts in holding, in paragraphs 39 to 73 of the order under appeal, that Euranimi was not individually concerned by the regulation at issue.
23 More specifically, Euranimi claims that the General Court examined each of the criteria established in that regard by the case-law independently of each other, without carrying out an overall analysis of its situation. In addition, the General Court failed to take into consideration important facts set out in its application.
24 Euranimi submits that the case-law of the General Court stemming, inter alia, from the judgment of 15 October 1998, Industrie des poudres sphériques v Council (T‑2/95, EU:T:1998:242, paragraph 52), and the order of 7 March 2014, FESI v Council (T‑134/10, EU:T:2014:143, paragraph 65), did not establish an exhaustive list of the relevant factors for the purpose of determining whether a natural or legal person is individually concerned by an EU act. It should therefore remain possible to argue by other means a ‘particular situation’ for an individual importer, such as Euranimi’s members, within the meaning of that case-law. According to Euranimi, that was confirmed by the Court of Justice in the judgment of 29 June 2023, Airoldi Metalli v Commission (C‑467/22 P, EU:C:2023:526, paragraphs 69, 70 and 73).
25 In the present case, first, Euranimi submits that it participated actively, from an early stage, in the administrative procedure that led to the adoption of the regulation at issue, thereby illustrating the direct and individual effect of the potential anti-dumping duty on the import business of its members. Its participation cannot be regarded as marginal, since it raised important issues inherent in that regulation, which the Commission failed to take into account. Therefore, according to Euranimi, the General Court did not correctly assess the facts when it held, in paragraphs 55 and 56 of the order under appeal, that Euranimi had begun to participate in that proceeding at a very late stage and that Euranimi’s participation in that proceeding had not affected its outcome.
26 Second, Euranimi submits that its members rely on a high grade of the product concerned in the present case from the Indian and Indonesian exporters identified in the regulation at issue. Those imports represent a percentage of each company’s total supply requirements, up to a maximum of 85%, with the result that, for a high percentage of the business of those members, the anti-dumping duty has a direct and individual effect. In those circumstances, the fact that Euranimi’s members are not the largest importers of that product and that part of the business of those members does not rely on that product is not of decisive importance.
27 Moreover, according to Euranimi, the General Court erred in holding, in paragraph 68 of the order under appeal, that the appellant had not shown that its members are dependent on imports of the product concerned in the present case such as to distinguish them individually from other importers. Ordinary importers of that product do not depend so heavily on imports from those exporters, since they have other sources of supply and are able to purchase that product from other companies and to import different products, which do not fall within the scope of the regulation at issue. Euranimi adds that the finding in paragraph 66 of that order, according to which Euranimi’s members could rely on alternative sources of supply of that product, is also irrelevant. Those members have contracts in place with their suppliers, which link them to those suppliers for medium- to long-term periods, and the fact that those suppliers are subject to anti-dumping duties does not constitute a valid reason for terminating those contracts. Furthermore, the situation of Euranimi’s members is different from that of other market players, in so far as the product concerned in the present case was the subject of further investigations aimed at imposing protectionist measures on imports originating in other countries.
28 Those facts, examined together, should have made it possible to differentiate the members of Euranimi, and therefore Euranimi itself, from any other importer of the product concerned in the present case. Due to their particular situation, Euranimi and its members are therefore individually concerned by the regulation at issue, without it being necessary to produce more information regarding the consequences of the anti-dumping duties at issue on the business activities of those members.
29 In its reply, Euranimi adds that, if it were not granted standing to bring proceedings before the General Court, it would be left without any form of judicial review in respect of the anti-dumping regulations that are of individual concern to its members. Unlike importers, who may request reimbursement of the anti-dumping duties paid in order to challenge the validity of the anti-dumping regulation under which those duties were paid by means of the mechanism for reviewing the validity of EU acts established in Article 267 TFEU, Euranimi would not able to challenge those trade defence measures before the General Court or before the national courts. It follows that its fundamental right to effective judicial protection has been infringed.
30 The Commission disputes that line of argument.
Findings of the Court
31 In accordance with the Court’s settled case-law, an association which is responsible for protecting the collective interests of certain undertakings is, as a rule, entitled to bring an action for annulment under the fourth paragraph of Article 263 TFEU only if it can assert its own interest or if the undertakings which it represents or some of those undertakings themselves have locus standi (judgment of 21 September 2023, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, C‑478/21 P, EU:C:2023:685, paragraph 80 and the case-law cited).
32 Accordingly, under that provision, an action brought by an association acting in place of one or more of its members who could themselves have brought an admissible action will itself be admissible (judgment of 21 September 2023, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, C‑478/21 P, EU:C:2023:685, paragraph 81 and the case-law cited).
33 Furthermore, it follows from settled case-law that, although regulations imposing anti-dumping duties in respect of a product are legislative in nature and scope, in that they apply to all the traders concerned, it is not inconceivable that they may be of direct and individual concern to some of those traders (judgments of 28 February 2019, Council v Growth Energy and Renewable Fuels Association, C‑465/16 P, EU:C:2019:155, paragraph 72 and the case-law cited, and of 29 February 2024, Euranimi v Commission, C‑95/23 P, EU:C:2024:177, paragraph 39).
34 Thus, in its case-law, the Court has identified certain categories of traders that may be individually concerned by a regulation imposing an anti-dumping duty, without prejudice to the possibility that other traders may be individually concerned by reason of certain attributes which are peculiar to them and which differentiate them from all other persons (judgments of 19 September 2019, Trace Sport, C‑251/18, EU:C:2019:766, paragraph 35 and the case-law cited, and of 29 February 2024, Euranimi v Commission, C‑95/23 P, EU:C:2024:177, paragraph 40).
35 According to the case-law of the Court, the following may be individually concerned by a regulation imposing an anti-dumping duty: first, those of the producers and exporters of the product in question which have been charged with practising dumping on the basis of information relating to their business activities; second, importers of that product whose resale prices were taken into account for the construction of export prices and which are consequently concerned by the findings relating to the existence of dumping; and, third, importers associated with exporters of the product in question, particularly where the export price has been calculated on the basis of those importers’ resale prices on the EU market and where the anti-dumping duty itself has been calculated on the basis of those resale prices (judgments of 19 September 2019, Trace Sport, C‑251/18, EU:C:2019:766, paragraph 36 and the case-law cited, and of 29 February 2024, Euranimi v Commission, C‑95/23 P, EU:C:2024:177, paragraph 41).
36 It follows from that case-law that the status of importer cannot, on its own, be sufficient to support the view that an importer is individually concerned by a regulation imposing an anti-dumping duty. Even if associated with exporters of the product in question, an importer is individually concerned only if it is able to prove that information relating to its business activities has been taken into account for the purpose of establishing dumping or, failing that, that it has other attributes which are peculiar to it and which differentiate it from all other persons (judgments of 10 March 2021, Von Aschenbach & Voss, C‑708/19, EU:C:2021:190, paragraph 42 and the case-law cited, and of 29 February 2024, Euranimi v Commission, C‑95/23 P, EU:C:2024:177, paragraph 42).
37 In the present case, as regards, in the first place, the argument alleging that the General Court erred in law in the application of the criteria established by the Court of Justice for the purpose of determining whether an applicant is individually concerned by a regulation imposing anti-dumping duties, for the purposes of the fourth paragraph of Article 263 TFEU, in that it did not carry out an overall analysis of Euranimi’s situation in the light of those criteria, it should be noted that, after correctly summarising, in paragraphs 40 to 46 of the order under appeal, the case-law of the Court of Justice cited in paragraphs 33 to 36 of the present judgment, the General Court first found, in paragraphs 49 and 50 of that order, that Euranimi did not claim that its members belonged to any of the categories of traders identified in that case-law as being individually concerned by a regulation imposing an anti-dumping duty. Euranimi does not challenge that case-law or that assessment by the General Court in its appeal.
38 Second, the General Court examined the two factors put forward by Euranimi to demonstrate that it was individually concerned by the regulation at issue. In that regard, the General Court held, in paragraphs 52 to 58 of that order, that the mere participation of Euranimi, as a representative of its members, and of one of those members in the proceeding that led to the adoption of that regulation, had not had the effect of distinguishing Euranimi individually for the purposes of the fourth paragraph of Article 263 TFEU. The General Court also verified, in paragraphs 59 to 73 of that order, whether there were other factors which, taken together with that participation, were sufficient to establish that Euranimi’s members were individually concerned by the regulation at issue by reason of a particular situation which differentiated them, but concluded that that was not the case.
39 In so doing, the General Court in no way considered, as is claimed, in essence, by Euranimi, that the three factors identified in the judgment of 11 June 1992, Extramet Industrie v Council (C‑358/89, EU:C:1992:257), constituted an exhaustive list of conditions which an independent importer must satisfy in order to be regarded as individually concerned by an anti-dumping regulation. On the contrary, the General Court merely found, in paragraphs 64 to 72 of the order under appeal, that, having regard to the evidence submitted by Euranimi, the situation of its members was in no way similar to the particular situation of the applicant in the case that gave rise to that judgment, since Euranimi had not proved that the regulation at issue affected its members other than in their objective capacity as importers of the product concerned in the present case.
40 It follows from the foregoing that the General Court duly took into account and correctly applied to the present case the criteria established by the case-law of the Court of Justice for the purpose of determining whether an applicant is individually concerned by a regulation imposing anti-dumping duties, for the purposes of the fourth paragraph of Article 263 TFEU, in examining all the facts put forward by Euranimi in order to differentiate the specific situation of its members.
41 As regards, in the second place, the arguments alleging an incorrect assessment of those facts, and, first, the complaint that the General Court erred, in paragraphs 55 and 56 of the order under appeal, in characterising Euranimi’s participation in the anti-dumping proceeding as being late and having no effect on the outcome of that proceeding, it must be observed that, in paragraph 55 of that order, the General Court held, in essence, that Euranimi was not justified in claiming that it was individually concerned by the regulation at issue because its participation, in its capacity as representative of its members, in the anti-dumping proceeding had affected the outcome of that proceeding.
42 In support of that finding, the General Court noted, in paragraph 55, first, that Euranimi had not substantiated its argument, second, that the observations which it had made during that proceeding had been rejected by the Commission and, third, that, in any event, neither the Court of Justice nor the General Court had found that participation in an anti-dumping proceeding was sufficient to be able to claim to be individually concerned by the anti-dumping regulation adopted at the end of that proceeding. In paragraph 56 of that order, the General Court added that Euranimi had begun to participate in the anti-dumping proceeding at a very late stage, and that it had not been demonstrated that the participation of one of its members in that proceeding went beyond that of Euranimi, so that the findings set out in the regulation at issue could not have even been of individual concern to Euranimi’s members.
43 In those circumstances, it must be held that the three grounds set out in paragraph 55 of the order under appeal, which are not contested by Euranimi, are sufficient to justify the General Court’s finding referred to in paragraph 41 of the present judgment. Accordingly, the complaint that the General Court erred in its assessment of Euranimi’s involvement in that proceeding, even if it were established, is in any event superfluous and must therefore be rejected as ineffective.
44 Second, as regards the complaint alleging that the General Court erred in its assessment of the argument relating to the fact that Euranimi’s members rely on the supply of the product concerned in the present case by the Indian and Indonesian exporters identified in the regulation at issue, it should be recalled that, in accordance with Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal is to be limited to points of law. The General Court alone has jurisdiction to establish and assess the relevant facts and to evaluate the evidence. The assessment of those facts and evidence does not therefore constitute, save in the case of their distortion, a question of law subject, as such, to review by the Court of Justice in the context of an appeal (see, to that effect, judgment of 28 September 2023, Changmao Biochemical Engineering v Commission, C‑123/21 P, EU:C:2023:708, paragraph 121 and the case-law cited).
45 In the present case, the General Court held, in paragraphs 64 and 65 of the order under appeal, that Euranimi had not established the truth of its claim relating to the significant proportion of those imports in the total supply requirements of its members or its claim that the contracts in force rendered it impossible to rely on alternative sources of supply. Euranimi merely repeats those claims, without alleging any distortion of the evidence which it had submitted in that regard, or explaining how the General Court erred in its assessment of that evidence, thereby seeking, in reality, to obtain a re-examination of that evidence, which, for the reasons set out in the preceding paragraph, goes beyond the jurisdiction of the Court of Justice on appeal.
46 The same is true of the arguments alleging that the product concerned in the present case is of a high grade and was the subject of further investigations aimed at imposing protectionist measures, since those arguments were put forward only at the appeal stage. According to settled case-law of the Court of Justice, to allow a party to put forward for the first time before the Court of Justice an argument which it has not raised before the General Court would in effect allow that party to bring before the Court of Justice a wider case than that heard by the General Court. In an appeal, the jurisdiction of the Court of Justice is confined to review of the findings of law on the pleas and arguments debated before the General Court (see, to that effect, judgment of 9 November 2023, Chemours Netherlands v ECHA, C‑293/22 P, EU:C:2023:847, paragraph 103 and the case-law cited).
47 As regards, in the third and last place, the argument alleging infringement of Euranimi’s right to effective judicial protection, it must be stated that that argument was rejected by the General Court, in paragraph 102 of the order under appeal, on the ground that the appellant had itself stated that its members, who are independent importers, were in a position to bring actions before the authorities and courts of the Member States on their own initiative, with the result that, in so far as it acted on behalf its members, there was no risk of infringement of the right to an effective judicial remedy.
48 An appeal or ground of appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the judgment or order which the appellant seeks to have set aside, simply reproduces the pleas in law and arguments already put forward before the General Court, must be declared inadmissible. Such an appeal or ground of appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake on appeal (judgments of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 96 and the case-law cited, and of 29 February 2024, Euranimi v Commission, C‑95/23 P, EU:C:2024:177, paragraph 52).
49 In the light of all the foregoing considerations, the first ground of appeal must be rejected as in part inadmissible, in part ineffective and in part unfounded.
The second ground of appeal
Arguments of the parties
50 By its second ground of appeal, Euranimi complains that the General Court erred in law in its interpretation of the fourth paragraph of Article 263 TFEU, mischaracterised the facts and distorted the evidence in holding, in paragraphs 87 to 103 of the order under appeal, that the regulation at issue had to be characterised as a regulatory act entailing implementing measures vis-à-vis Euranimi’s members.
51 More specifically, according to Euranimi, by finding that a directly applicable EU act requires the adoption of implementing measures in order for it to be implemented merely because a national authority is responsible for controlling its application, the General Court unduly restricted the application of the condition, laid down in the final limb of the fourth paragraph of Article 263 TFEU, according to which the regulatory act must not entail implementing measures. Such an interpretation amounts to accepting that any EU regulatory act which is directly applicable in the Member States entails implementing measures and, therefore, to depriving that provision of its effects, because there is always a national authority responsible for controlling the application of that type of act.
52 Euranimi maintains that, in order to establish whether or not a regulatory act entails implementing measures, it must be examined whether it is necessary, for the national authorities, to adopt an act in order to confer legal effects to that regulatory act and contribute actively to its application and implementation. By contrast, the mere fact that that authority can decide ex post to open inspection proceedings and/or controls of that act cannot be regarded as an implementing measure.
53 Furthermore, Euranimi submits that the General Court did not consider that, in accordance with EU customs legislation, the application of the regulation at issue in the legal order of the Member States is automatic and does not need any involvement of the customs authorities.
54 First of all, Euranimi submits that, under Article 79 of the Customs Code, the customs debt, as defined in point 18 of Article 5 thereof, is to be incurred on import, through non-compliance with one of the obligations set out in the applicable customs legislation. The liability to pay that debt is therefore automatic either when a debtor submits his or her customs declaration or when the goods concerned are introduced into the customs territory of the European Union where the debtor failed to comply with all the customs formalities. The date on which the goods are introduced is also taken into account in the calculation of the three-year limitation period, laid down in Article 103 of the Customs Code, which applies to post-import controls and audits performed by the customs authorities. According to Euranimi, since the regulation at issue can trigger customs debt liability automatically, without the customs authorities being required to adopt any act, that regulation does not entail implementing measures. If it were necessary for the customs authorities to adopt an implementing measure, that liability under customs law would arise only upon adoption of that measure.
55 Next, according to Euranimi, Articles 101, 102 and 104 of the Customs Code cannot be read in isolation from the core principles of communication by electronic means, referred to in Article 6(1) and (4) of that code, and those governing the controls based on risk assessment methods performed by customs authorities, laid down in Article 46 of that code. Unless those authorities decide to carry out a control pursuant to Articles 46, 48 and 188 of that code, the amount of customs duties is determined and their payment is made by the importer, without any involvement of the customs authorities, since declarations filled out by the importer are considered to be immediately accepted by the customs authorities pursuant to Article 172(1) of the Customs Code. Controls by the customs authorities are carried out either randomly or on the basis of a risk assessment which takes into consideration the fact that that amount is determined by the importer. The findings made in the judgment of 10 December 2015, Kyocera Mita Europe v Commission (C‑553/14 P, EU:C:2015:805, paragraphs 49 to 56), according to which the customs authorities should in any event expressly communicate the customs debt to the importer, are irrelevant in the present case, given that that judgment refers to a requirement laid down in the former Community Customs Code, which has in the meantime been replaced.
56 In its reply, Euranimi adds that the entry in the accounts of the amount of import duty payable and the notification of the customs debt to the debtor by the national authorities must be regarded as acts of application and not as acts of implementation. By contrast, the determination of the amount of import duty payable might be regarded as going beyond mere application and as involving acts of national authorities against which it would, in principle, be possible to bring an action before the national courts. However, according to the appellant, that is not the case in practice, given that, since the revision of the EU customs system, it is essentially for the importer to determine the amounts of the anti-dumping duty to be paid, so that that determination now constitutes a technical formality.
57 Last, although it follows from the case-law stemming from the judgment of 18 October 2018, Internacional de Productos Metálicos v Commission (C‑145/17 P, EU:C:2018:839, paragraph 52), that whether a regulatory act entails implementing measures should be assessed by reference to the position of the person pleading the right to bring proceedings, the General Court failed to take account of the fact that, in the present case, the customs declarations of Euranimi’s members concerning the goods covered by the anti-dumping duty imposed by the regulation at issue were all automatically accepted by the customs authorities, without any intervention by those authorities, with the result that that regulation was not subject to any implementing measure. The General Court thus failed to examine and distorted the evidence adduced by Euranimi in that regard.
58 The Commission disputes that line of argument.
Findings of the Court
59 The admissibility of an action brought by natural or legal persons against an act which is not addressed to them, in accordance with the fourth paragraph of Article 263 TFEU, is subject to the condition that they be accorded standing to bring proceedings, which arises in two situations. First, such proceedings may be instituted if the act is of direct and individual concern to those persons. Second, such persons may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them (see, to that effect, judgments of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraph 32 and the case-law cited, and of 29 February 2024, Euranimi v Commission, C‑95/23 P, EU:C:2024:177, paragraph 67).
60 The expression ‘which … does not entail implementing measures’, within the meaning of the final limb of the fourth paragraph of Article 263 TFEU, should be interpreted in the light of the objective of that provision which, as is clear from its origin, consists in preventing an individual from being obliged to infringe the law in order to have access to a court. Where a regulatory act directly affects the legal situation of a natural or legal person without requiring implementing measures, that person could be denied effective judicial protection if he or she did not have a legal remedy before the EU judicature for the purpose of challenging the legality of the regulatory act. In the absence of implementing measures, natural or legal persons, although directly concerned by the act in question, would be able to obtain a judicial review of that act only after having infringed its provisions, by pleading that those provisions are unlawful in proceedings initiated against them before the national courts (judgments of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraph 49 and the case-law cited, and of 29 February 2024, Euranimi v Commission, C‑95/23 P, EU:C:2024:177, paragraph 68).
61 By contrast, where a regulatory act entails implementing measures, judicial review of compliance with the EU legal order is ensured irrespective of whether those measures were adopted by the European Union or the Member States. Natural or legal persons who are unable, because of the conditions governing admissibility laid down in the fourth paragraph of Article 263 TFEU, to challenge a regulatory act of the European Union directly before the EU judicature are protected against the application to them of such an act by the ability to challenge the implementing measures which that act entails (judgments of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraph 50 and the case-law cited, and of 29 February 2024, Euranimi v Commission, C‑95/23 P, EU:C:2024:177, paragraph 69).
62 Where responsibility for the implementation of such acts lies with the institutions, bodies, offices or agencies of the European Union, natural or legal persons are entitled to bring a direct action before the EU judicature against the implementing acts under the conditions stated in the fourth paragraph of Article 263 TFEU, and to plead in support of that action, pursuant to Article 277 TFEU, the illegality of the basic act at issue. Where that implementation is a matter for the Member States, those persons may plead the invalidity of the basic act at issue before the national courts and tribunals and cause the latter to request a preliminary ruling from the Court of Justice, pursuant to Article 267 TFEU (judgments of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraph 51 and the case-law cited, and of 29 February 2024, Euranimi v Commission, C‑95/23 P, EU:C:2024:177, paragraph 70).
63 As the Court has already held, whether a regulatory act entails implementing measures should be assessed by reference to the position of the person pleading the right to bring proceedings under the final limb of the fourth paragraph of Article 263 TFEU. It is therefore irrelevant whether the act in question entails implementing measures with regard to other persons (judgments of 18 October 2018, Internacional de Productos Metálicos v Commission, C‑145/17 P, EU:C:2018:839, paragraph 52 and the case-law cited, and of 29 February 2024, Euranimi v Commission, C‑95/23 P, EU:C:2024:177, paragraph 71).
64 In the present case, as regards, in the first place, the argument that the General Court incorrectly found that the existence of an implementing measure, within the meaning of that provision, is sufficiently established since the customs authorities are competent to carry out controls on declarations submitted by importers, it must be held that that argument is based on an erroneous reading of the order under appeal.
65 In paragraph 98 of that order, the General Court held that the absence of control of the appellant’s goods was irrelevant. Furthermore, as is apparent from paragraphs 92 to 94 and 98 of that order, the General Court relied on Article 101(1) and Article 102(1) and (2) of the Customs Code in order to conclude that regulations which impose definitive anti-dumping duties entail implementing measures vis-à-vis the importers liable to pay those duties, within the meaning of the fourth paragraph of Article 263 TFEU.
66 Those provisions, according to which the customs authorities responsible for the place where the customs debt is incurred, or is deemed to have been incurred in accordance with Article 87 of that code, determine the amount of import or export duty payable and notify the debtors thereof, apply even where those authorities do not carry out controls (see, to that effect, judgments of 19 October 2023, Airoldi Metalli v Commission, C‑764/22 P, EU:C:2023:800, paragraph 50, and of 29 February 2024, Euranimi v Commission, C‑95/23 P, EU:C:2024:177, paragraph 78).
67 In the second place, the argument that Article 79 of the Customs Code, which determines when a customs debt is to be incurred through non-compliance with a customs obligation, demonstrates that the regulation at issue does not require implementing measures cannot succeed either.
68 Even in the situations covered by that provision, the fact remains that, under Article 101(1) and Article 102 of that code, it is for the customs authorities responsible for the place where the customs debt is incurred, or is deemed to have been incurred under Article 87 of that code, to adopt implementing measures within the meaning of the fourth paragraph of Article 263 TFEU (judgments of 29 June 2023, Airoldi Metalli v Commission, C‑467/22 P, EU:C:2023:526, paragraph 52, and of 29 February 2024, Euranimi v Commission, C‑95/23 P, EU:C:2024:177, paragraph 79).
69 As regards, in the third place, the argument alleging that the General Court failed to have regard to the fact that, under Article 172(1) of the Customs Code, declarations made by debtors are immediately accepted by the customs authorities by means of a data-processing technique as referred to in Article 6 of that code and that, under Articles 46, 48 and 188 of that code, controls may be carried out after those declarations have been accepted, it is sufficient to note that it is apparent from Article 194(1) of that code that the customs authorities are to release the goods as soon as the particulars in the customs declaration have been verified or accepted without verification.
70 Accordingly, even where the debtor’s declaration is accepted immediately by the customs authorities, those authorities are still required to take an implementing measure, within the meaning of the fourth paragraph of Article 263 TFEU, in the form of release of the goods, which, under Article 102(2) of the Customs Code, is equivalent to a decision notifying the debtor of the customs debt. The fact that, under Article 48 of that code, the customs authorities are not required to verify, after the release of the goods, the accuracy and completeness of the information provided in the customs declaration and that, under Article 6 of that code, an electronic system generates a decision of the customs authorities accepting that declaration, taking the form of the allocation of a release code, does not prevent that decision from being an ‘implementing measure’ within the meaning of the fourth paragraph of Article 263 TFEU (judgments of 29 June 2023, Airoldi Metalli v Commission, C‑467/22 P, EU:C:2023:526, paragraph 55, and of 29 February 2024, Euranimi v Commission, C‑95/23 P, EU:C:2024:177, paragraph 82).
71 As regards, in the fourth and last place, the argument alleging distortion of the evidence adduced by Euranimi to demonstrate the absence of implementing measures in the present case, it must be recalled that, where an appellant alleges distortion of the evidence by the General Court, that person must, under Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice, indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in that person’s view, led to such distortion. In addition, according to the settled case-law of the Court of Justice, that distortion must be obvious from the documents in the Court’s file, without there being any need to carry out a new assessment of the facts and the evidence (see, to that effect, judgment of 23 November 2023, Ryanair v Commission, C‑209/21 P, EU:C:2023:905, paragraph 44 and the case-law cited).
72 In the present case, Euranimi has not indicated, in its appeal, either the evidence which the General Court allegedly distorted or how exactly it distorted that evidence. Furthermore, as the Commission has pointed out, Euranimi did not produce any evidence relating specifically to the way in which imports of the product concerned in the present case made by its members were treated by the customs authorities, but merely put forward an interpretation of the applicable customs rules, which was correctly rejected by the General Court.
73 Since Euranimi did not produce any evidence in that regard before the General Court and does not in any way challenge, in its appeal, the presentation of the content of the relevant provisions of the Customs Code by that court, the argument alleging distortion of the evidence must be rejected as manifestly unfounded.
74 In the light of all the foregoing considerations, the second ground of appeal must be rejected as unfounded.
The third ground of appeal
Arguments of the parties
75 By its third ground of appeal, Euranimi complains that the General Court incorrectly characterised the facts and distorted the evidence by holding, in paragraphs 105 to 115 of the order under appeal, that Euranimi was not entitled to bring its action for the purpose of defending its own interests.
76 More specifically, Euranimi claims that the General Court did not fully assess its role as negotiator. It is a European association whose mission is to represent and defend the commercial interests of its members at European level, which it did through its participation in the anti-dumping proceeding that led to the adoption of the regulation at issue. Therefore, its situation is covered by the case-law stemming from the judgments of 2 February 1988, Kwekerij van der Kooy and Others v Commission (67/85, 68/85 and 70/85, EU:C:1988:38), and of 24 March 1993, CIRFS and Others v Commission (C‑313/90, EU:C:1993:111), and it is therefore entitled to bring an action against that regulation. The choice of one of Euranimi’s members to participate in that proceeding confirms that it protects the collective interests of its members.
77 Furthermore, Euranimi claims that the judgment of 19 May 2021, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission (T‑254/18, EU:T:2021:278), confirms not only Euranimi’s right to participate in the anti-dumping investigation as an interested party, but also its right to challenge the possible definitive anti-dumping regulation before the General Court.
78 The Commission disputes that line of argument.
Findings of the Court
79 In the present case, it must be noted that, although alleging an erroneous characterisation of the facts and a distortion of the evidence by the General Court, Euranimi does not identify, in its appeal, either the facts concerned or the evidence that was allegedly distorted by the General Court in paragraphs 105 to 115 of the order under appeal. In the light of the case-law referred to in paragraph 71 of the present judgment, such a line of argument is inadmissible.
80 Moreover, it must be stated that the appellant, in essence, merely repeats arguments already submitted to the General Court and which the latter rejected. In accordance with the case-law referred to in paragraph 48 of the present judgment, a ground of appeal which amounts in reality to no more than a request for re-examination of an argument submitted to the General Court falls outside the jurisdiction of the Court of Justice.
81 In the light of the foregoing considerations, the third ground of appeal must be rejected as inadmissible.
82 Since all the grounds of appeal put forward in support of the present appeal have been rejected, the appeal must be dismissed in its entirety as being in part inadmissible, in part ineffective and in part unfounded.
Costs
83 Under Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs.
84 Under Article 138(1) of the Rules of Procedure, which is applicable to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
85 In the present case, since Euranimi has been unsuccessful in its appeal, it must be ordered to bear its own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.
On those grounds, the Court (Ninth Chamber) hereby:
1. Dismisses the appeal;
2. Orders European Association of Non-Integrated Metal Importers & distributors (Euranimi) to bear its own costs and to pay those incurred by the European Commission.
Spineanu-Matei | Bonichot | Rossi |
Delivered in open court in Luxembourg on 20 June 2024.
A. Calot Escobar | | O. Spineanu-Matei |
Registrar | | President of the Chamber |