ORDER OF THE GENERAL COURT (First Chamber)
22 November 2021 (*)
(Action for annulment – Common commercial policy – Generalised arrangement of preferential customs tariffs established by Regulation (EU) No 978/2012 – Temporary withdrawal of trade preferences applicable to certain products originating in Cambodia for reason of serious and systematic violations of human rights – Lack of direct concern – Lack of individual concern – Inadmissibility)
In Case T‑454/20,
Garment Manufacturers Association in Cambodia, established in Phnom Penh (Cambodia), represented by C. Borelli, S. Monti and C. Ziegler, lawyers,
applicant,
v
European Commission, represented by A. Biolan and E. Schmidt, acting as Agents,
defendant,
APPLICATION under Article 263 TFEU for the partial annulment of Commission Delegated Regulation (EU) 2020/550 of 12 February 2020, amending Annexes II and IV to Regulation (EU) No 978/2012 of the European Parliament and of the Council as regards the temporary withdrawal of the arrangements referred to in Article 1(2) of Regulation (EU) No 978/2012 in respect of certain products originating in the Kingdom of Cambodia (OJ 2020 L 127, p. 1)
THE GENERAL COURT (First Chamber),
composed of H. Kanninen, President, M. Jaeger (Rapporteur) and M. Stancu, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 The applicant, Garment Manufacturers Association in Cambodia, is an industry association registered in Cambodia that represents Cambodian garment, footwear and travel goods export sectors. According to the applicant, it represents 582 domestic factories in total, or around 675 000 employees from a total of 865 000 to 885 000 employees in those sectors.
2 On 11 February 2019, the Commission adopted an implementing act containing an annex initiating the procedure for the temporary withdrawal of tariff preferences provided to Cambodia, in accordance with Article 19(3) of Regulation (EU) No 978/2012 of the European Parliament and of the Council, of 25 October 2012, applying a scheme of generalised tariff preferences and repealing Council Regulation (EC) No 732/2008 (OJ 2012 L 303, p. 1). The Commission then asked the Kingdom of Cambodia and third parties to make their views known. The applicant registered as a third party to the proceedings and submitted written observations on 12 March 2019, and on 8, 9 and 31 July 2019.
3 On 12 February 2020, the Commission adopted Commission Delegated Regulation (EU) 2020/550 of 12 February 2020, amending Annexes II and IV to Regulation No 978/2012 as regards the temporary withdrawal of the arrangements referred to in Article 1(2) of Regulation (EU) No 978/2012 in respect of certain products originating in the Kingdom of Cambodia (OJ 2020 L 127, p. 1) (‘the contested regulation’), which partially withdraws the benefit of those arrangements in respect of that country. The Commission found serious and systematic violations by the Kingdom of Cambodia of the principles laid down in Articles 19, 21, 22 and 25 of the International Covenant on Civil and Political Rights, adopted by the General Assembly of the United Nations on 16 December 1966 (‘the ICCPR’) and, consequently, considered that the preferential arrangement granted to Cambodia had to be partially and temporarily withdrawn until it is decided that the reasons for justifying the withdrawal no longer apply. The contested regulation is applicable as from 12 August 2020.
Procedure and forms of order sought
4 By application lodged at the Court Registry on 16 July 2020, the applicant brought this action, in which it claims that the Court should:
– annul the contested regulation, with the exception of Article 1(2), in so far as it provides for the temporary withdrawal of the tariff preferences referred to in Article 1(2)(c) of Regulation No 978/2012 for products with the HS code 1212 93;
– order the Commission to bear the costs.
5 By separate action lodged at the Court Registry on 6 October 2020, the Commission raised a plea of admissibility under Article 130 of the Rules of Procedure of the General Court, in which it claims that the Court should:
– dismiss the action as inadmissible;
– order the applicant to pay the costs.
6 On 24 November 2020, the applicant lodged its observations on that plea of inadmissibility, requesting its dismissal.
7 On 16 March 2021, by way of measures of organisation of procedure provided for in Article 89(3) of the Rules of Procedure, the Court asked questions of the parties with a view to obtaining additional information with regard to, first, the direct concern of the applicant’s members within the meaning of the second limb of the fourth paragraph of Article 263 TFEU and, secondly, the question whether the contested regulation entailed implementing measures vis-à-vis those members, within the meaning of the third limb of the fourth paragraph of Article 263 TFEU.
8 On 31 March 2021, the parties responded to the Court’s questions.
9 On 22 April 2021, the Commission lodged its observations on the applicant’s responses. On 24 April 2021, the applicant lodged its observations on the Commission’s responses.
Legal framework
10 The generalised scheme of tariff preferences (‘the GSP’), put in place by the European Union in 1971, grants trade preferences to developing countries. The GSP was created to encourage those countries to reduce poverty and to promote good governance and sustainable development by helping them to generate revenue through international trade.
11 The GSP is currently governed by Regulation No 978/2012, according preferential access to the EU market in the form of reductions on normal Common Customs Tariff duties, which makes provision for three different arrangements:
– a general arrangement granted to all developing countries which share a common developing need and are in a similar stage of economic development;
– a special incentive arrangement for sustainable development and good governance for developing countries which are vulnerable;
– a special arrangement for the least-developed countries, called: ‘Everything But Arms’ (‘the EBA [arrangement]’).
12 Under Article 19(1)(a) of Regulation No 978/2012, the preferential arrangements referred to in Article 1(2) of that regulation may be withdrawn temporarily, in respect of all or of certain products originating in a beneficiary country, for: ‘(a) serious and systematic violation of principles laid down in the conventions listed in Part A of Annex VIII of that regulation; (b) export of goods made by prison labour; (c) serious shortcomings in customs controls on the export or transit of drugs (illicit substances or precursors), or failure to comply with international conventions on anti-terrorism and money laundering; (d) |serious and systematic unfair trading practices including those affecting the supply of raw materials, which have an adverse effect on the Union industry and which have not been addressed by the beneficiary country […]; (e) serious and systematic infringement of the objectives adopted by Regional Fishery Organisations or any international arrangements to which the Union is a party concerning the conservation and management of fishery resources’.
13 The withdrawal is decided following a procedure initiated in accordance with Article 19(3) and (4) of Regulation No 978/2012 and governed by Commission Delegated Regulation (EU) No 1083/2013 of 28 August 2013 establishing rules related to the procedure for temporary withdrawal of tariff preferences and adoption of general safeguard measures under Regulation No 978/2012 (OJ 2013 L 293, p. 16).
14 The contested regulation was adopted due to findings by the Commission of serious and systematic violations of human rights in Cambodia and provides for partial temporary withdrawal of the tariff preferences in respect of certain products originating in that country. The products concerned are, inter alia, garments, footwear and travel goods for export, as well as sugar cane.
Law
15 Under Article 130(1) of the Rules of Procedure, the Court may, if the defendant so requests, rule on the question of admissibility without going to the substance of the case. Under Article 130(7) of those rules, the General Court is to decide on the application as soon as possible or, where special circumstances so justify, reserve its decision until it rules on the substance of the case.
16 In the present case, since the Commission has requested a ruling on admissibility, the Court, considering that it has sufficient information from the case file, has decided to give a ruling without taking further steps in the proceedings.
17 As a preliminary point, it must be noted that the case-law allows for the admissibility of actions brought by associations in three particular, well-established situations. They are, first, the situation in which a legal provision expressly grants a series of procedural powers to trade associations; secondly, that in which the association represents the interests of undertakings which would, themselves, be entitled to bring proceedings; and, thirdly, that in which the association is distinguished individually because its own interests as an association are affected, in particular because its negotiating position is affected by the measure in respect of which annulment is sought (see orders of 30 September 1997, Federolio v Commission, T‑122/96, EU:T:1997:142, paragraph 60 and the case-law cited, and of 6 May 2020, Sabo and others v Parliament and Council, T‑141/19, not published, EU:T:2020:179, paragraph 36 and the case-law cited).
18 Moreover, it must be noted that the fourth paragraph of Article 263 TFEU provides for two situations in which a natural or legal person has standing to bring proceedings against a measure that is not addressed to that person. First, such proceedings may be instituted if the act is of direct and individual concern to that person. Secondly, they may bring proceedings against a regulatory act which does not entail implementing measures, if that act is of direct concern to them (see judgment of 16 May 2019, Pebagua v Commission, C‑204/18 P, not published, EU:C:2019:425, paragraph 26 and the case-law cited; judgment of 11 July 2019, Air France v Commission, T‑894/16, EU:T:2019:508, paragraph 24).
19 In the present case, in paragraph 66 of the application, the applicant submits that an association has standing to bring proceedings under the fourth paragraph of Article 263 TFEU, on the condition that one or more of its members has standing to act individually. That is the case, according to the applicant because, first, at least one of its members is directly and individually concerned by the contested regulation and, secondly, for many of its members, the contested regulation is a regulatory act which is of direct concern to them and which does not entail implementing measures.
20 Thus the applicant is not claiming to have standing to bring proceedings except in so far as some of its members, individually, have standing. In doing so, it relies on the second situation referred to in paragraph 17 above.
21 Consequently, it must be established whether the applicant’s members may be regarded as directly and individually concerned by the contested regulation and, as appropriate, whether the contested regulation is a regulatory act that is of direct concern to the applicant’s members and, if so, whether it entails implementing measures.
The individual concern of the applicant’s members
22 The Commission essentially puts forward four arguments to conclude that the applicant’s members are not individually concerned by the contested regulation, within the meaning of the second limb of the fourth paragraph of Article 263 TFEU.
23 In the first place, the Commission submits that the contested regulation is an act of general application which requires implementing measures and which concerns an almost infinite number of people, namely all the actual or potential importers of relevant products originating in Cambodia. However, the applicant identifies only one member, namely Quantum Apparel Ltd., as being particularly affected among the 582 it comprises.
24 Moreover, according to the Commission, the fact that the contested regulation has significant impact on the exports of the applicant’s members to the European Union is not sufficient to demonstrate that they find themselves in a situation that distinguishes them from other economic operators.
25 In the second place, the Commission asserts, in essence, that the contested regulation is not hybrid in nature, since it does not contain individual decisions personal to the applicant and does not therefore create a ‘class’.
26 Furthermore, as regards the triggering event of the contested regulation, the Commission notes that the individual data of the applicant’s members constitute neither the basis nor the grounds for the contested regulation. The contested regulation seeks to withdraw temporarily the tariff preferences granted to Cambodia, for serious and systematic violations of the principles laid down in the core conventions of the United Nations (UN) concerning human rights, and that withdrawal has nothing to do with exporting producers. Consequently, the Commission argues that the relevant distinctive feature of the anti-dumping, anti-subsidy and safeguard regulations which individually distinguishes the operators subject to those duties, namely the recourse to individual data specific to the companies of those operators with a view to establishing the rates of the duties, is not met in the present case.
27 In the third place, the Commission observes that, according to the case-law, the fact that a person is involved in the procedure leading to the adoption of an EU measure is capable of distinguishing that person individually in relation to the measure in question only if the applicable EU legislation grants that person certain procedural guarantees in his or her own right.
28 In that regard, the Commission considered that the situation of ‘interested parties’ in relation to a safeguard measure under Regulation No 978/2012, such as the members of the Cambodia Rice Federation (CRF) whom the Court considered to be individually concerned by Commission Implementing Regulation (EU) 2019/67 of 16 January 2019, imposing safeguard measures with regard to imports of Indica rice originating in Cambodia and Myanmar/Burma (OJ 2019, L 15, p. 5), at issue in the case that gave rise to the order of 10 September 2020, Cambodia and CRF v Commission (T‑246/19, EU:T:2020:415), is fundamentally different from the situation of ‘third parties’ in the tariff preferences withdrawal procedure, such as the applicant’s members
29 The Commission stipulates that the participation of a natural or legal person in the administrative procedure does not ipso facto make that person individually concerned within the meaning of the fourth paragraph of Article 263 TFEU, in particular where, as in the present case, that person participates only as a third party and where there are no other factors giving rise to a particular situation which allow that person to be distinguished from all the other operators as regards the measure in question.
30 The Commission adds that the role played by exporters in the tariff preferences withdrawal procedure is different from the one they play in the safeguard procedure, given that, in the context of safeguard investigations conducted under Regulation No 978/2012, exporters are specifically mentioned in Delegated Regulation No 1083/2013 and benefit from much more extensive procedural rights. On the contrary, as regards procedural guarantees enjoyed by the applicant’s members, the Commission underlines that Delegated Regulation No 1083/2013 does not explicitly mention exporters but simply makes reference to third parties in general. Therefore, according to the Commission, the procedural rights granted to third parties in the context of the tariff preferences withdrawal procedure, such as the applicant’s members, are more limited and therefore insufficient to make them individually concerned.
31 The Commission underlines that that significant difference reflects the fact that the tariff preferences withdrawal procedure is above all a political question that concerns the European Union and the beneficiary countries, whereas the safeguard procedure seeks to remedy serious difficulties encountered by EU producers, caused by imports to the European Union and therefore triggered by the behaviour of exporters.
32 In the fourth place, the Commission claims that Regulation No 978/2012 does not require it to consider the measure’s impact on different economic operators such as the applicant’s members or any other third party registered to the administrative procedure. On the contrary, the Commission observes that Article 19(1) of Regulation No 978/2012 confers on it the discretionary power to withdraw the tariff preferences as regards all or part of the products originating from a beneficiary country, since the choice of products is above all a political question that concerns the EU and the beneficiary countries.
33 The Commission adds that, in the present case, whilst it was not obliged to do so, it took into consideration the socio-economic impact of the withdrawal of the tariff preferences, including its impact on workers and industries. However, it assessed in general terms the impact of that withdrawal on the socio-economic development of Cambodia as a whole and did not therefore need to take account of its particular impact on the applicant’s members.
34 The applicant disputes the Commission’s arguments.
35 In the first place, as to the fact that it identified only one member, namely Quantum Apparel, as being particularly affected among its 582 members, the applicant relies on settled case-law according to which the identification of a single member, directly and individually concerned, is sufficient for the action to be admissible (see judgment of 2 April 1998, Greenpeace and Others v Commission, C‑321/95 P, EU:C:1998:153, paragraph 7 and the case-law cited).
36 In the second place, first, the applicant claims that its members are affected not only because of ‘their objective position as economic operators on the international market for garments, footwear and travel goods’, as the Commission maintains, but also and especially due to their position as Cambodian producers and exporters directly targeted by the contested regulation. That distinguishes them from all the other economic operators present on the international market for garments, footwear and travel goods. All the more so Quantum Apparel and a number of other applicant members, who are particularly dependent on exports.
37 Secondly, the applicant notes that, in the order of 10 September 2020, Cambodia and CRF v Commission (T‑246/19, EU:T:2020:415), the Court considered that the Kingdom of Cambodia was individually concerned by Implementing Regulation 2019/67 and that it was part of a ‘closed class’, as a beneficiary country of the EBA [arrangement] identified in that regulation, having actively participated in the procedure and in respect of which the consequences of the safeguard measures were taken into account for the purpose of setting the Common Customs Tariff duties. According to the applicant, most of those elements also apply to itself and to its members.
38 Thirdly, the applicant disputes the Commission’s assertion that the contested regulation does not seek to equalise competitive conditions on the EU market. According to the applicant, the Commission is trying to apply to the present case theories specific to anti-dumping, anti-subsidy and safeguard regulations in order to establish its lack of individual concern.
39 Fourthly, according to the applicant, while the Commission’s use of its data or of its members’ data in the procedure that led to the adoption of the contested regulation might be an indication, that use is not necessary in order to establish its individual concern. Moreover, by its arguments, the Commission attempts to argue that it cannot have infringed the principle of proportionality in the applicant’s case, because it did not actually take into consideration any information about the applicant.
40 In the third place, the applicant considers, in essence, that the present case and the case that gave rise to the order of 10 September 2020, Cambodia and CRF v Commission (T‑246/19, EU:T:2020:415), are comparable on most of the aspects relating to individual concern.
41 In the fourth place, the applicant claims to have actively participated in the procedure, by registering as a third party, by requesting that a hearing take place and by filing written observations.
42 Moreover, the applicant submits that the Commission’s assertion that the more limited procedural rights granted to third parties in the context of the tariff preferences withdrawal procedure are insufficient to make them individually concerned is irrelevant. For the applicant, the undertakings affected by tariff preference withdrawal measures should benefit from judicial protection similar to those affected by safeguard measures.
43 In the fifth place, the applicant notes that, in the case that gave rise to the order of 10 September 2020, Cambodia and CRF v Commission (T‑246/19, EU:T:2020:415), the Court took account of the negative repercussions of Implementing Regulation 2019/67 on the economic situation of Cambodian exporters of rice in order to determine whether the CRF was individually concerned by the contested regulation. In the same way, according to the applicant, the Commission took account in recital 73 of the contested regulation, if only to a minimal extent, of the negative consequences of the contested regulation on the economic situation of Cambodian exporters.
Preliminary observations
44 As regards the concept of individual concern, it is settled case-law that for a natural or legal person to be regarded as individually concerned, within the meaning of the fourth paragraph of Article 263 TFEU, by a measure of general application, such as a regulation, that person must be affected by the measure in question, by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons and distinguishes them individually in the same way as the addressee (judgments of 25 July 2002, Unión de Pequeños Agricultores v Council, C‑50/00 P, EU:C:2002:462, paragraph 36, and of 10 April 2003, Commission v Nederlandse Antillen, C‑142/00 P, EU:C:2003:217, paragraph 65).
45 Moreover, the fact that a person is involved in the procedure leading to the adoption of an EU measure may be capable of distinguishing that person individually in relation to the measure in question, which must mean that that measure has binding legal effects for him or her, if the applicable EU legislation grants that person certain procedural guarantees (see, to that effect, judgment of 17 January 2002, Rica Foods v Commission, T‑47/00, EU:T:2002:7, paragraph 55, and order of 14 December 2005, Arizona Chemical and others v Commission, T‑369/03, EU:T:2005:458, paragraph 72).
Arguments relating to the individual concern of the applicant’s members in the light of the order of 10 September 2020 and of the triggering event of the contested regulation
46 In the first place, it must be borne in mind that, in paragraphs 111 to 121 of the order of 10 September 2020, Cambodia and CRF v Commission (T‑246/19, EU:T:2020:415), the Court considered, for the sake of completeness, the members of the CRF, exporters of Indica rice originating in Cambodia to the EU, identified or concerned as being individually concerned by Implementing Regulation 2019/67, in so far as, first, either they were identified by name in that regulation or they were identified by the Commission and had participated in the procedure leading to the adoption of that regulation, since data relating to their commercial activity were used to set safeguard measures against them, and, secondly, the Commission had taken account, in that regulation, of the negative impact on their activity. Therefore, the Court was entitled to find that the procedural rights and the guarantees granted to the members of the CRF identified or concerned as interested parties were accompanied by circumstances likely to distinguish them.
47 In the second place, as regards the triggering event of the contested regulation, the decision to withdraw the preferential arrangement temporarily in respect of certain products originating in Cambodia is, as the Commission rightly noted, the consequence of it finding serious and systematic violations of the principles defined in the conventions listed in part A of Annex VIII to Regulation No 978/2012.
48 In that regard, the heading given by the Commission to Section 2 of the contested regulation was ‘Serious and systematic violations of the principles laid down in the ICCPR’. Within that section, the Commission found that Articles 19, 21, 22 and 25 of the ICCPR, relating to the rights to freedom of expression, political participation, freedom of association and peaceful assembly were violated.
49 Section 3 of the contested regulation is headed ‘Remaining issues under [International Labour Organisation] Conventions 87 and 98 as well as the [International Covenant on Economic, Social and Cultural Rights]’. Within that section, the Commission, first, found that Articles 2, 3, 4 and 7 of the International Labour Organisation (ILO) Convention No 87 and Articles 1 and 3 of ILO Convention No 98 regarding the rights of workers were violated, in particular, the freedom of association, the right to organise and collective bargaining, read in conjunction with Articles 19, 21 and 22 of the ICCPR, and, secondly, took note of the information and updates provided by the Kingdom of Cambodia regarding Articles 7 and 8 of the International Covenant on Economic Social and Cultural Rights relating to non-discrimination, land rights and the right to housing, noting, however, that gaps remained.
50 Within Section 4 of the contested regulation, headed ‘Conclusions’, having regard to the facts and considerations described in Section 2, the nature of the rights infringed and the duration, scale and impact of the actions and omissions of the Kingdom of Cambodia, the Commission found serious and systematic violations by that country of the principles laid down in Articles 19, 21, 22 and 25 of the ICCPR and accordingly, having examined its observations and views, considered that the preferential arrangement granted to it had to be temporarily withdrawn.
51 Therefore, in the contested regulation, the Commission based its conclusions set out in Section 4 and its decision only on Section 2, relating to the violation of Articles 19, 21, 22 and 25 of the IPPCR, based, in particular, on the violation of political rights in Cambodia. It is true that Section 3 of the contested regulation also contains a reference to the violation of the rights protected by Articles 19, 21 and 22 of the ICCPR, but the decision to withdraw temporarily the preferential scheme granted to Cambodia is not based on that section.
52 It follows that the economic activity of the applicant’s members is not related to the triggering event of the contested regulation.
53 In the light of those considerations, it must be verified whether the individual concern of the applicant’s members could be inferred from the arguments put forward by the applicant, according to which, in the first place, it was given procedural guarantees, and in the second place, the Commission took account of the negative repercussions for its members when the contested regulation was adopted, as was the situation for the members of the CRF in the case that gave rise to the order of 10 September 2020, Cambodia and CRF v Commission (T‑246/19, EU:T:2020:415).
Procedural guarantees granted to interested third parties
54 First, as the Commission observes, rights and guarantees granted to interested third parties are not the same as those granted to the beneficiary countries.
55 Delegated Regulation No 1083/2013, which governs the procedure that may lead to a decision to withdraw preferential arrangements temporarily, grants third parties the following rights and guarantees: the right to be informed of the initiation of the investigation; the right to present their point of view in writing; the obligation on the part of the Commission to take account of the views expressed by those third parties where they are supported by sufficient proof; the right, on written request, of access to the constituted file and the right, on written request, to be heard by the Commission and to request the intervention of the Hearing Officer.
56 However, Article 19(7) of Regulation No 978/2012 stipulates that only the beneficiary countries, first, receive the report presenting the Commission’s findings and conclusions before the latter decides to terminate the procedure, and secondly, have the right to submit their comments on that report. Moreover, in accordance with Article 7(1) of Delegated Regulation No 1083/2013, where the tariff preferences have been temporarily withdrawn from a beneficiary country, only that country may submit a written request for reinstatement of the tariff preferences if it considers that the reasons justifying the temporary withdrawal no longer apply.
57 Secondly, unlike the procedure that may lead to the adoption of a safeguard measure, which was at issue in the case that gave rise to the order of 10 September 2020, Cambodia and CRF v Commission (T‑246/19, EU:T:2020:415), the procedure for temporary withdrawal from a preferential arrangement does not include the category of ‘interested parties’ but only that of ‘third parties’. In that regard, it must be noted that that difference is not only terminological, in so far as, in the context of an investigation that may end in the adoption of a safeguard measure, additional procedural rights are granted to interested parties compared to those granted to third parties in the context of a tariff preference withdrawal procedure.
58 Delegated Regulation No 1083/2013 grants the additional rights and guarantees to interested parties. Thus, interested parties that have produced evidence or information that is not accepted are informed immediately of the reasons for the rejection and have the opportunity to provide further explanations. The interested parties also have the right to submit comments when they have access to the constituted file, which will be taken into consideration wherever they are sufficiently substantiated. The interested parties also have the right to receive the details underlying the essential facts and considerations and to submit observations that will be examined by the Commission.
59 Thirdly, according to paragraph 86 of the order of 10 September 2020, Cambodia and CRF v Commission (T‑246/19, EU:T:2020:415), mere active participation in the investigation is not a sufficient condition in itself to assess whether a natural or legal person is individually concerned but, nevertheless, it is not irrelevant. That implies that an applicant is obliged to produce relevant evidence in order to establish its individual concern. Therefore, even allowing for the applicant’s active participation in the procedure as a third party in the interest of its members, like the interested parties in an investigation leading to the adoption of a safeguard measure, the fact remains that that participation is not, in itself, evidence capable of satisfying the condition of individual concern, since other evidence is necessary for that purpose (see, to that effect, order of 7 March 2014, FESI v Council, T‑134/10, not published, EU:T:2014:143, paragraphs 57 and 58) and is lacking in the present case. First, the applicant’s members are not identified by name in the contested regulation, and secondly, the data relating to their commercial activity were not used in order to decide on the temporary withdrawal of the preferential arrangement granted to Cambodia.
The argument alleging that the Commission took account of the negative repercussions and the impact of the temporary withdrawal of the preferential arrangement granted to Cambodia on the applicant’s members
60 It must be pointed out that, in paragraph 89 of the order of 10 September 2020, Cambodia and CRF v Commission (T‑246/19, EU:T:2020:415), the Court ruled that ‘the Commission must, in so far as the circumstances of the case permit, inquire into the negative effects which its decision might have on the economy of the Kingdom of Cambodia, as a beneficiary country of the EBA [arrangement], as well as on the interested parties’ and found that ‘those parties are to be regarded, for the purposes of the admissibility of an action, as individually concerned in so far as they are members of a limited class of natural or legal persons who were identified or identifiable by the Commission and particularly affected by the [Implementing] Regulation [2019/67]’.
61 However, that finding by the Court, when assessing the individual concern of the Kingdom of Cambodia, relied on a deduction based on the finding that, in temporarily suspending the protection that benefited that country under Regulation No 978/2012, Implementing Regulation 2019/67 was capable of causing it significant economic harm, given the importance to its economy of the export of Indica rice to the European Union.
62 The Court extended that finding in relation to the negative repercussions for the Kingdom of Cambodia for the interested parties. Moreover, when assessing the individual concern of the members of CRF identified or concerned by Implementing Regulation 2019/67, the Court ruled that it was apparent from the recitals of that regulation that the Commission had recognised its negative repercussions for the economic situation of Cambodian exporters and for the ease with which they were able to export Indica rice originating in Cambodia to the European Union, and that it was for that reason that it also took those consequences into account for the purpose of deciding that a progressive reduction in the rate of Common Customs Tariff duties would be sufficient.
63 In the present case, since the situation of the applicant’s members is not the same as that of the CRF members identified and concerned by Implementing Regulation 2019/67, the transposition mutatis mutandis of the Court’s reasoning in the order of 10 September 2020, Cambodia and CRF v Commission (T‑246/19, EU:T:2020:415), is not possible.
64 It must be noted that, in recital 73 of the contested regulation, for the purposes of assessing which products were to be affected by the temporary withdrawal of the preferential arrangement granted to Cambodia, the Commission took account, first, of the needs of that country in terms of economic development and the objectives of Regulation No 978/2012, in particular the need for Cambodia to diversify its export base, and secondly, the socio-economic consequences of that withdrawal, including its impact on workers and industries.
65 However, first, the reference to Cambodia’s needs does not concern the applicant’s members. Secondly, while it is true that the reference to Cambodian workers and industries concerns them, among others, it is not, on its own, sufficient for a finding that the Commission took into account the particular situation of those industries in which the applicant’s members are active due to certain qualities particular to them or to a factual situation which distinguishes them in relation to other Cambodian industries and, therefore, for it to be regarded as being a distinguishing element. Furthermore, the applicant itself submits, in paragraph 38 of its observations on the plea of inadmissibility raised by the Commission, that the latter took into account the negative consequences on its members only to a marginal extent. Therefore, if that were proven, it would not, in itself, having regard to the circumstances of the case, be capable of satisfying the condition of the individual concern of the applicant’s members.
66 Therefore, in view of the foregoing, it must be held that the applicant’s members are not individually concerned by the contested regulation, within the meaning of the second situation referred to in the second limb of the fourth paragraph of Article 263 TFEU.
67 Since the conditions of direct concern and individual concern are cumulative (judgment of 3 October 2013, Inuit Tapiriit Kanatami and others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 76), there is no need, if an applicant is not individually concerned by the contested act, to ascertain whether that act concerns the applicant directly.
68 However, in the present case, the examination of the direct concern of the applicant’s members remains relevant for the purposes of ruling on the applicant’s standing under the third limb of the fourth paragraph of Article 263 TFEU to bring an action against a regulatory act not entailing implementing measures.
The direct concern of the applicant’s members
69 In its responses to the questions raised by the Court, in the first place, the Commission observes that, in accordance with settled case-law in the field of anti-dumping duties, direct concern applies only to exporting producers of the product concerned and not to producers who do not themselves export the product directly to the European Union, but do so indirectly via traders and that the burden of proof of the fact that the applicant’s members export the products concerned directly rests with the applicant (judgment of 28 February 2019, Council v Growth Energy and Renewable Fuels Association, C‑465/16 P, EU:C:2019:155, paragraph 74).
70 In the second place, even if the applicant provides such evidence, the Commission considers that that settled case-law cannot be applied to the present case. In that regard, the Commission notes that, in the order of 10 September 2020, Cambodia and CRF v Commission (T‑246/19, EU:T:2020:415), the Court relied on that case-law concerning a safeguard measure adopted in accordance with Regulation No 978/2012. However, it submits that, in the present case, the withdrawal of tariff preferences, in accordance with Article 19 of Regulation No 978/2012, is fundamentally different in nature.
71 The Commission submits that it is the serious and systematic violations, by the Kingdom of Cambodia, of the principles laid down in the international conventions, which triggered the withdrawal of tariff preferences under Article 19 of Regulation No 978/2012. According to the Commission, the behaviour, commercial or otherwise, of exporters does not play any role in such a withdrawal, contrary to the situation applicable to a safeguard measure. It follows that the withdrawal of tariff preferences targets the country itself and not its exporters, who are therefore only indirectly concerned, as the case may be. According to the Commission, it is the status of the country as a GSP beneficiary which changes following that withdrawal, since the change in the situation of exporters is no more than an indirect effect of the change in the status of the country.
72 The Commission maintains that the fact that the tariff preferences withdrawal instrument targets the countries is an important element of the legal framework that must be taken into consideration in assessing the direct concern of exporters.
73 The Commission submits that, in the order of 10 September 2020, Cambodia and CRF v Commission (T‑246/19, EU:T:2020:415), the Court upheld the relevance of that element when it found that, if the members of the CRF were directly concerned by the safeguard measure, this was because the reason for imposing the safeguard, namely the serious difficulties caused or likely to be caused to the EU industry, was attributed to them. The applicant’s members, in the present case, are neither responsible for the reasons leading to the withdrawal of tariff preferences, exclusively linked to serious and systematic violations by the Kingdom of Cambodia of the principles laid down in Articles 19, 21, 22 and 25 of the ICCPR, nor targeted by the withdrawal measure.
74 The Commission adds that the applicant restricted itself to drawing attention to the ‘dissuasive effect’ of the contested regulation and the fact that the withdrawal of tariff preferences was likely to lead to a fall in sales for its members. That was only a factual complaint, of general application, and not a change in the legal situation of the exporters, which remained unchanged in so far as the contested regulation did not restrict the exercise of the rights of the applicant’s members to export the products concerned to the European Union legally, as was the case before the contested regulation came into force.
75 The Commission concluded that the case-law relating to the direct concern of anti-dumping duties cannot be applied to the present case.
76 The applicant observes that, according to the case-law, for an applicant to be regarded as being directly concerned by an EU measure, within the meaning of Article 263 TFEU, first, that measure must directly affect the legal situation of the person concerned, and secondly, no discretion must be left to the person to whom that measure is addressed and who is responsible for its implementation, such implementation being purely automatic and resulting from EU rules.
77 As regards the first requirement, first, the applicant submits that the contested regulation directly affects the legal situation of its members. It observes that, before the contested regulation came into force, its members benefited from preferential access to the EU market, given that they were exempted from Common Customs Tariff duties. However, since that regulation came into force, its members no longer benefit from the tariff preferences provided by Regulation No 978/2012 for the products concerned originating in Cambodia. Thus, according to the applicant, it is indisputable that the contested regulation directly, and even substantially, affects the legal position of its members.
78 Secondly, according to the applicant, the order of 10 September 2020, Cambodia and CRF v Commission (T‑246/19, EU:T:2020:415), confirms its position, the Court having ruled that Implementing Regulation 2019/67 ‘amend[ed] the rights granted to Cambodian exporters by the Regulation [No 978/2012] under which they benefit from preferential access to the EU market by means of a total suspension of Common Customs Tariff duties’ and, therefore, ‘chang[ed] their legal situation’ (order of 10 September 2020, Cambodia and CRF v Commission, T‑246/19, EU:T:2020:415, paragraph 106). In that regard, the applicant adds that the Court also ruled that ‘the mere fact that the exporting members of the CRF do not pay the tariffs applicable to imports of Indica rice originating in Cambodia into the European Union, since those duties are paid by importers, d[id] not support the conclusion that the [Implementing] Regulation [2019/67] ha[d] no effect on their legal situation’ (order of 10 September 220, Cambodia and CRF v Commission, T‑246/19, EU:T:2020:415, paragraph 107).
79 As regards the second requirement, that no discretion must be left to the addressee of the measure in question, the applicant submits that the contested regulation does not confer any discretion on the customs authorities of the Member States as to its implementation.
80 As regards the concept of direct concern, it must be recalled that a natural or legal person is directly concerned by the decision being challenged where two cumulative conditions are met, namely that the contested measure must, first, directly affect the legal situation of the natural or legal person and, secondly, leave no discretion to the addressees entrusted with its implementation, such implementation being purely automatic and resulting only from EU rules, without the application of other intermediate rules (see judgment of 4 December 2019, Polskie Górnictwo Naftowe i Gazownictwo v Commission, C‑342/18 P, not published, EU:C:2019:1043, paragraph 38 and the case-law cited).
81 As regards the first requirement, the case-law states that the mere fact that a measure may exercise an influence on an applicant’s material situation cannot be sufficient ground to consider that applicant to be directly concerned, and that only the existence of specific circumstances may enable a litigant, claiming that the measure affects his or her position on the market, to bring an action on the basis of the fourth paragraph of Article 263 TFEU (see judgment of 18 October 2018, ArcelorMittal Tubular Products Ostrava and Others v Commission, T‑364/16, EU:T:2018:696, paragraph 40 and the case-law cited).
82 According to the case-law, only ‘producers and exporters’ of the product subject to anti-dumping duties, alleged to be involved in dumping and also able to establish that they were identified in the acts of the institutions, are considered directly concerned by the regulation imposing that duty (see, by analogy, judgment of 28 February 2019, Council v Growth Energy and Renewable Fuels Association, C‑465/16 P, EU:C:2019:155, paragraph 79).
83 It must be held that, in accordance with the settled case-law cited in paragraph 81 above, the direct concern of the applicant’s members cannot be based on the mere fact that they suffer material consequences because of the contested regulation.
84 In that regard, it must be held that the approach taken by the Court as to the direct concern of the members of the CRF identified or concerned by Implementing Regulation 2019/67 cannot be applied to the applicant’s members, contrary to what the applicant submits.
85 First of all, in paragraph 58 of the order of 10 September 2020, Cambodia and CRF v Commission (T‑246/19, EU:T:2020:415), the Court recalled that the mere fact that a measure may exercise an influence on an applicant’s material situation is not sufficient ground to conclude that the applicant is directly concerned, and that only the existence of specific circumstances may enable a litigant, claiming that the measure affects its position on the market, to rely on the fourth paragraph of Article 263 TFEU.
86 Next, in paragraphs 103 to 108 of the order of 10 September 2020, Cambodia and CRF v Commission (T‑246/19, EU:T:2020:415), the Court considered that the commercial conduct of Cambodian exporters directly triggered, first, the request for an investigation by the Commission and, secondly, the findings of serious difficulties suffered by the EU industry. The Court thus ruled that, in so far as Implementing Regulation 2019/67 re-established the Common Customs Tariff on imports by the exporter members of the CRF to the European Union of Indica rice originating in Cambodia, that changed, first, the material situation of those members, by making exports to the European Union more difficult and, secondly, their legal situation, by amending the right granted to Cambodian exporters by the GSP enabling them to benefit from preferential access to the EU market by means of a total suspension of Common Customs Tariff duties.
87 It follows that, in the order of 10 September 2020, Cambodia and CRF v Commission (T‑246/19, EU:T:2020:415), the Court took as a premiss the fact that the CRF members identified or concerned triggered, first, the investigation carried out by the Commission and, secondly, the findings of serious difficulties suffered by the EU industry.
88 Therefore, the Court’s finding as to the measure’s influence on the material situation and on the legal situation of the CRF members identified or concerned was inextricably linked to that premiss and, therefore, to the particular circumstances described in paragraph 58 of the order of 10 September 2020, Cambodia and CRF v Commission (T‑246/19, EU:T:2020:415).
89 However, in the present case, the applicant’s members are neither responsible for the tariff preference withdrawal procedure nor the findings of serious and systematic violations of human rights in Cambodia, which are attributable to that beneficiary country of a preferential tariff scheme. Thus the direct concern of the applicant’s members cannot be based on the mere fact that they suffer material consequences caused by changes to Cambodia’s status, since that type of indirect consequences is not sufficient to satisfy the criterion requiring impact on the legal situation of the person concerned in order to establish a direct concern.
90 Therefore, and without it being necessary to examine the other requirement mentioned in paragraph 79 above, it must be held that the applicant’s members are not directly concerned by the contested regulation within the meaning of the second limb of the fourth paragraph of Article 263 TFEU.
91 Since the requirement as to direct concern is also a condition that must be satisfied in the situation referred to in the third limb of the fourth paragraph of Article 263 TFEU, the present action must be rejected as inadmissible, without it being necessary to examine whether the contested regulation is a regulatory act which does not entail implementing measures (see order of 8 October 2015, Agrotikos Synetairismos Profitis Ilias v Council, T‑731/14, not published, EU:T:2015:821, paragraph 23 and the case-law cited).
Costs
92 Under Article 134(1) 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 pay the costs, in accordance with the form of order sought by the Commission.
On those grounds,
THE GENERAL COURT (First Chamber)
hereby orders:
1. The action is dismissed as inadmissible.
2. Garment Manufacturers Association in Cambodia is ordered to pay the costs.
Luxembourg, 22 November 2021.