# 62016TO0289

ORDER OF THE GENERAL COURT (Seventh Chamber)

21 June 2017 (
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  )

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‛Action for annulment — Regulation (EU, Euratom) No 883/2013 — External investigation conducted by OLAF — Report and recommendations — Measures not amenable to challenge — Inadmissibility’

In Case T‐289/16,

Inox Mare Srl, established in Rimini (Italy), represented by R. Holzeisen, lawyer,

Inox Mare Srl

applicant,

v

European Commission, represented initially by J. Baquero Cruz, D. Nardi and L. Grønfeldt, and subsequently by J. Baquero Cruz and D. Nardi, acting as Agents,

European Commission

defendant,

APPLICATION based on Article 263 TFEU, seeking annulment of the final report of the European Anti-Fraud Office (OLAF) concerning external investigation OF/2013/0086/B1 (THOR(2015) 40189 of 26 November 2015), of the recommendation of the Director-General of OLAF with respect to that report (THOR(2015) 42057 of 9 December 2015) and of the prior and strictly related measures taken by OLAF,

THE GENERAL COURT (Seventh Chamber),

composed of V. Tomljenović, President, A. Marcoulli (Rapporteur) and A. Kornezov, Judges,

Registrar: E. Coulon,

makes the following

Order

Order

Background to the dispute

Background to the dispute

| 1 | The applicant, Inox Mare Srl, is a capital company incorporated under Italian law which imports and markets stainless steel fasteners in the European Union. Between 2010 and 2012, the applicant is alleged to have purchased huge quantities of stainless steel fasteners from the Philippines. |
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1

The applicant, Inox Mare Srl, is a capital company incorporated under Italian law which imports and markets stainless steel fasteners in the European Union. Between 2010 and 2012, the applicant is alleged to have purchased huge quantities of stainless steel fasteners from the Philippines.

| 2 | From March 2013 onwards, the Agenzia delle Dogane e dei Monopoli (Customs and State Monopolies Authority, Italy), acting on information provided by the European Anti-Fraud Office (OLAF) in connection with investigation OF/2013/0086/B1, forwarded to the applicant, through five of its outlying offices, 42 reports detailing evasion of customs duties followed by 43 recovery notices and 43 decisions imposing penalties totalling in excess of EUR 8.5 million. |
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2

From March 2013 onwards, the Agenzia delle Dogane e dei Monopoli (Customs and State Monopolies Authority, Italy), acting on information provided by the European Anti-Fraud Office (OLAF) in connection with investigation OF/2013/0086/B1, forwarded to the applicant, through five of its outlying offices, 42 reports detailing evasion of customs duties followed by 43 recovery notices and 43 decisions imposing penalties totalling in excess of EUR 8.5 million.

| 3 | On 25 March 2016, in the context of proceedings between itself and one of the outlying offices of the Customs and State Monopolies Authority, the applicant became aware, among documents annexed to the Authority’s written pleadings, of the OLAF Final Report concerning external investigation OF/2013/0086/B1 (THOR(2015) 40189 of 26 November 2015) (‘the report of 26 November 2015’) and of the recommendation of the Director-General of OLAF with respect to that report (THOR(2015) 42057 of 9 December 2015) (‘the recommendation of 9 December 2015’) (together, ‘the contested measures’). |
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3

On 25 March 2016, in the context of proceedings between itself and one of the outlying offices of the Customs and State Monopolies Authority, the applicant became aware, among documents annexed to the Authority’s written pleadings, of the OLAF Final Report concerning external investigation OF/2013/0086/B1 (THOR(2015) 40189 of 26 November 2015) (‘the report of 26 November 2015’) and of the recommendation of the Director-General of OLAF with respect to that report (THOR(2015) 42057 of 9 December 2015) (‘the recommendation of 9 December 2015’) (together, ‘the contested measures’).

| 4 | The report of 26 November 2015 states that stainless steel fasteners imported into seven Member States as products originating in the Philippines, a country benefiting from preferential customs treatment, in fact originated in Taiwan, a country that is subject to customs duties and anti-dumping measures. The report of 26 November 2015 finds that import duties totalling approximately an estimated EUR 19.2 million had not been paid on those products and might be recoverable, including some EUR 5.6 million in Italy. |
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4

The report of 26 November 2015 states that stainless steel fasteners imported into seven Member States as products originating in the Philippines, a country benefiting from preferential customs treatment, in fact originated in Taiwan, a country that is subject to customs duties and anti-dumping measures. The report of 26 November 2015 finds that import duties totalling approximately an estimated EUR 19.2 million had not been paid on those products and might be recoverable, including some EUR 5.6 million in Italy.

| 5 | By the recommendation of 9 December 2015, the Director-General of OLAF recommended that the Customs and State Monopolies Authority take all appropriate measures to ensure the recovery of approximately EUR 5.6 million as set out in the report of 26 November 2015, and to prevent any further damage to the EU budget. Lastly, he requested the Authority, in that recommendation, to inform OLAF of any action or decision taken. |
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5

By the recommendation of 9 December 2015, the Director-General of OLAF recommended that the Customs and State Monopolies Authority take all appropriate measures to ensure the recovery of approximately EUR 5.6 million as set out in the report of 26 November 2015, and to prevent any further damage to the EU budget. Lastly, he requested the Authority, in that recommendation, to inform OLAF of any action or decision taken.

Procedure and forms of order sought

Procedure and forms of order sought

| 6 | By application lodged at the Registry of the General Court on 3 June 2016, the applicant brought the present action, claiming that the Court should:





  — | annul the contested measures and the ‘prior and strictly related measures taken by OLAF’; |
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6

By application lodged at the Registry of the General Court on 3 June 2016, the applicant brought the present action, claiming that the Court should:

—

annul the contested measures and the ‘prior and strictly related measures taken by OLAF’;

| — | order the European Commission to pay the costs of the proceedings. |
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—

order the European Commission to pay the costs of the proceedings.

| 7 | By separate document lodged at the Court Registry on 13 July 2016, the Commission raised an objection of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court, contending that the Court should:





  — | dismiss the action as inadmissible; |
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7

By separate document lodged at the Court Registry on 13 July 2016, the Commission raised an objection of inadmissibility under Article 130(1) of the Rules of Procedure of the General Court, contending that the Court should:

—

dismiss the action as inadmissible;

| — | order the applicant to pay the costs. |
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—

order the applicant to pay the costs.

| 8 | The applicant submitted its observations on the objection of inadmissibility on 25 August 2016, claiming that the Court should reject as unfounded the objection of inadmissibility raised by the Commission. |
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8

The applicant submitted its observations on the objection of inadmissibility on 25 August 2016, claiming that the Court should reject as unfounded the objection of inadmissibility raised by the Commission.

Law

Law

| 9 | Pursuant to Article 130(1) and (7) of the Rules of Procedure, the Court may, if the defendant so requests, rule on the question of admissibility without considering the merits of the case. In the present case, as the Commission has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings. |
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9

Pursuant to Article 130(1) and (7) of the Rules of Procedure, the Court may, if the defendant so requests, rule on the question of admissibility without considering the merits of the case. In the present case, as the Commission has applied for a decision on inadmissibility, the Court, finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings.

| 10 | The Commission claims that the contested measures are not open to challenge by the applicant pursuant to Article 263 TFEU, since a report drawn up by OLAF on completion of an investigation and a recommendation of the Director-General of OLAF with respect to that report do not produce binding legal effects even in respect of the persons cited, which is, in any event, not the case with regard to the applicant. |
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10

The Commission claims that the contested measures are not open to challenge by the applicant pursuant to Article 263 TFEU, since a report drawn up by OLAF on completion of an investigation and a recommendation of the Director-General of OLAF with respect to that report do not produce binding legal effects even in respect of the persons cited, which is, in any event, not the case with regard to the applicant.

| 11 | The applicant takes issue with the Commission’s arguments. It contends that the Italian customs authorities are bound by the content of the contested measures and act merely as collectors of the customs duties, without any discretion. |
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11

The applicant takes issue with the Commission’s arguments. It contends that the Italian customs authorities are bound by the content of the contested measures and act merely as collectors of the customs duties, without any discretion.

| 12 | As a preliminary point, it should be noted that, under the first paragraph of Article 263 TFEU, the Court of Justice of the European Union reviews the legality of acts intended to produce legal effects vis-à-vis third parties. |
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12

As a preliminary point, it should be noted that, under the first paragraph of Article 263 TFEU, the Court of Justice of the European Union reviews the legality of acts intended to produce legal effects vis-à-vis third parties.

| 13 | According to the established case-law of the Court of Justice, only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position are acts or decisions which may be the subject of an action for annulment (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9, and of 26 January 2010, Internationaler Hilfsfonds v Commission, C‐362/08 P, EU:C:2010:40, paragraph 51). |
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13

According to the established case-law of the Court of Justice, only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position are acts or decisions which may be the subject of an action for annulment (judgments of 11 November 1981, IBM v Commission, 60/81, EU:C:1981:264, paragraph 9, and of 26 January 2010, Internationaler Hilfsfonds v Commission, C‐362/08 P, EU:C:2010:40, paragraph 51).

| 14 | Regarding measures taken by OLAF, first of all, it is apparent from the case-law of the Court developed in respect of Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by OLAF (OJ 1999 L 136, p. 1) that a report which OLAF draws up on the conclusion of its external and internal investigations does not bring about a distinct change in the legal position of the persons who are referred to in it by name (judgment of 6 April 2006, Camós Grau v Commission, T‐309/03, EU:T:2006:110, paragraph 48; see also, to that effect, order of 22 June 2015, In vivo v Commission, T‐690/13, not published, EU:T:2015:519, paragraph 24). It is clear from that same case-law that the final nature of an OLAF report for the purposes of the procedure governing investigations which that office carries out also does not confer on it the nature of an act having binding legal effects (judgment of 6 April 2006, Camós Grau v Commission, T‐309/03, EU:T:2006:110, paragraph 49). |
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14

Regarding measures taken by OLAF, first of all, it is apparent from the case-law of the Court developed in respect of Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by OLAF (OJ 1999 L 136, p. 1) that a report which OLAF draws up on the conclusion of its external and internal investigations does not bring about a distinct change in the legal position of the persons who are referred to in it by name (judgment of 6 April 2006, Camós Grau v Commission, T‐309/03, EU:T:2006:110, paragraph 48; see also, to that effect, order of 22 June 2015, In vivo v Commission, T‐690/13, not published, EU:T:2015:519, paragraph 24). It is clear from that same case-law that the final nature of an OLAF report for the purposes of the procedure governing investigations which that office carries out also does not confer on it the nature of an act having binding legal effects (judgment of 6 April 2006, Camós Grau v Commission, T‐309/03, EU:T:2006:110, paragraph 49).

| 15 | In that regard, according to the established case-law of the Court, it is clear from the provisions of Regulation No 1073/1999, in particular recital 13 and Article 9, that the findings of OLAF which are set out in a final report cannot lead automatically to the initiation of judicial or disciplinary proceedings, since the competent authorities are free to decide what action to take pursuant to a final report and are accordingly the only authorities which have the power to adopt decisions capable of affecting the legal position of those persons in relation to which the report recommended that such proceedings be instigated (see judgments of 6 April 2006, Camós Grau v Commission, T‐309/03, EU:T:2006:110, paragraph 51 and the case-law cited therein, and of 4 October 2006, Tillack v Commission, T‐193/04, EU:T:2006:292, paragraph 69 and the case-law cited therein). While OLAF may, in its reports, recommend the adoption of measures having binding legal effects that adversely affect the persons concerned, the opinion which it provides in that regard imposes no obligation, even of a procedural nature, on the authorities to which it is addressed (judgment of 6 April 2006, Camós Grau v Commission, T‐309/03, EU:T:2006:110, paragraph 50). |
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15

In that regard, according to the established case-law of the Court, it is clear from the provisions of Regulation No 1073/1999, in particular recital 13 and Article 9, that the findings of OLAF which are set out in a final report cannot lead automatically to the initiation of judicial or disciplinary proceedings, since the competent authorities are free to decide what action to take pursuant to a final report and are accordingly the only authorities which have the power to adopt decisions capable of affecting the legal position of those persons in relation to which the report recommended that such proceedings be instigated (see judgments of 6 April 2006, Camós Grau v Commission, T‐309/03, EU:T:2006:110, paragraph 51 and the case-law cited therein, and of 4 October 2006, Tillack v Commission, T‐193/04, EU:T:2006:292, paragraph 69 and the case-law cited therein). While OLAF may, in its reports, recommend the adoption of measures having binding legal effects that adversely affect the persons concerned, the opinion which it provides in that regard imposes no obligation, even of a procedural nature, on the authorities to which it is addressed (judgment of 6 April 2006, Camós Grau v Commission, T‐309/03, EU:T:2006:110, paragraph 50).

| 16 | Likewise, according to the case-law, the forwarding of information by OLAF to the national authorities cannot be regarded as an act adversely affecting the person concerned, since it does not bring about a distinct change in that person’s legal position given that, under Article 10(2) of Regulation No 1073/1999, the national judicial authorities remain free, within the limits of their own powers, to assess the content and full significance of that information and, therefore, to decide what action should be taken upon it (see judgment of 20 May 2010, Commission v Violetti and Others, T‐261/09 P, EU:T:2010:215, paragraph 47 and the case-law cited therein; see also, to that effect, order of 22 June 2015, In vivo v Commission, T‐690/13, not published, EU:T:2015:519, paragraph 24). Consequently, the possible initiation of legal proceedings following the forwarding of information by OLAF, and the subsequent legal acts, are the sole and entire responsibility of the national authorities (judgment of 4 October 2006, Tillack v Commission, T‐193/04, EU:T:2006:292, paragraph 70). |
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16

Likewise, according to the case-law, the forwarding of information by OLAF to the national authorities cannot be regarded as an act adversely affecting the person concerned, since it does not bring about a distinct change in that person’s legal position given that, under Article 10(2) of Regulation No 1073/1999, the national judicial authorities remain free, within the limits of their own powers, to assess the content and full significance of that information and, therefore, to decide what action should be taken upon it (see judgment of 20 May 2010, Commission v Violetti and Others, T‐261/09 P, EU:T:2010:215, paragraph 47 and the case-law cited therein; see also, to that effect, order of 22 June 2015, In vivo v Commission, T‐690/13, not published, EU:T:2015:519, paragraph 24). Consequently, the possible initiation of legal proceedings following the forwarding of information by OLAF, and the subsequent legal acts, are the sole and entire responsibility of the national authorities (judgment of 4 October 2006, Tillack v Commission, T‐193/04, EU:T:2006:292, paragraph 70).

| 17 | Secondly, the principles resulting from the case-law cited in paragraphs 14 to 16 above remain applicable to the legal framework governing external investigations conducted by OLAF under the new Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by OLAF and repealing Regulation No 1073/1999 and Council Regulation (Euratom) No 1074/1999 (OJ 2013 L 248, p. 1). |
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17

Secondly, the principles resulting from the case-law cited in paragraphs 14 to 16 above remain applicable to the legal framework governing external investigations conducted by OLAF under the new Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013 concerning investigations conducted by OLAF and repealing Regulation No 1073/1999 and Council Regulation (Euratom) No 1074/1999 (OJ 2013 L 248, p. 1).

| 18 | It follows from recital 31 of Regulation No 883/2013 that, as was provided for by recital 13 of Regulation No 1073/1999, it is for the competent authorities of the Member States to decide what action should be taken on completed investigations on the basis of the final investigation reports drawn up by OLAF. Moreover, it is clear from recital 32 of that regulation that the competent authorities of the Member States should report to OLAF, at its request, on the ‘action taken, if any’ on the basis of the information transmitted to them by OLAF. |
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18

It follows from recital 31 of Regulation No 883/2013 that, as was provided for by recital 13 of Regulation No 1073/1999, it is for the competent authorities of the Member States to decide what action should be taken on completed investigations on the basis of the final investigation reports drawn up by OLAF. Moreover, it is clear from recital 32 of that regulation that the competent authorities of the Member States should report to OLAF, at its request, on the ‘action taken, if any’ on the basis of the information transmitted to them by OLAF.

| 19 | Furthermore, the first subparagraph of Article 11(1) of Regulation No 883/2013 provides first of all that, on completion of an investigation by OLAF, a report is to be drawn up, under the authority of the Director-General, which gives an account of, among other things, the procedural steps followed, the facts established and their preliminary classification in law, the estimated financial impact of the facts established and the conclusions of the investigation. The second subparagraph of Article 11(1) of Regulation No 883/2013 also states that ‘[t]he report shall be accompanied by recommendations of the Director-General on whether or not action should be taken’, and Article 11(2) of that regulation states that reports constitute admissible evidence in administrative or judicial proceedings of the Member State in which their use proves necessary, in the same way and under the same conditions as administrative reports drawn up by national administrative inspectors, that they are subject to the same evaluation rules as those applicable to such administrative reports, and that they have the same evidentiary value as such reports. Article 11(3) of the regulation then provides that reports and recommendations drawn up following an external investigation are to be sent to the competent authorities of the Member States concerned and, if necessary, to the competent Commission services. Finally, Article 11(6) of Regulation No 883/2013 provides that, at OLAF’s request, the competent authorities of the Member States concerned must, in due time, send to OLAF information on ‘action taken, if any’ on recommendations transmitted as a result of an external investigation. |
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19

Furthermore, the first subparagraph of Article 11(1) of Regulation No 883/2013 provides first of all that, on completion of an investigation by OLAF, a report is to be drawn up, under the authority of the Director-General, which gives an account of, among other things, the procedural steps followed, the facts established and their preliminary classification in law, the estimated financial impact of the facts established and the conclusions of the investigation. The second subparagraph of Article 11(1) of Regulation No 883/2013 also states that ‘[t]he report shall be accompanied by recommendations of the Director-General on whether or not action should be taken’, and Article 11(2) of that regulation states that reports constitute admissible evidence in administrative or judicial proceedings of the Member State in which their use proves necessary, in the same way and under the same conditions as administrative reports drawn up by national administrative inspectors, that they are subject to the same evaluation rules as those applicable to such administrative reports, and that they have the same evidentiary value as such reports. Article 11(3) of the regulation then provides that reports and recommendations drawn up following an external investigation are to be sent to the competent authorities of the Member States concerned and, if necessary, to the competent Commission services. Finally, Article 11(6) of Regulation No 883/2013 provides that, at OLAF’s request, the competent authorities of the Member States concerned must, in due time, send to OLAF information on ‘action taken, if any’ on recommendations transmitted as a result of an external investigation.

| 20 | It is apparent from the provisions of Article 11(2) of Regulation No 883/2013 that OLAF reports merely constitute evidence that may be used in national administrative or judicial proceedings, that they are to be evaluated according to the rules on evidence in national law, and that they have the evidentiary value provided for in national law. They are therefore not measures which, under Regulation No 883/2013, adversely affect, as such, the persons referred to in them. |
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20

It is apparent from the provisions of Article 11(2) of Regulation No 883/2013 that OLAF reports merely constitute evidence that may be used in national administrative or judicial proceedings, that they are to be evaluated according to the rules on evidence in national law, and that they have the evidentiary value provided for in national law. They are therefore not measures which, under Regulation No 883/2013, adversely affect, as such, the persons referred to in them.

| 21 | Under Article 11(3) of Regulation No 883/2013, the forwarding of the report and recommendations to the competent national authorities does not entail obligations regarding the action which those authorities must take on that report and recommendations in respect of the persons referred to in them. Although Article 11(6) of Regulation No 883/2013, as relied on by the applicant, does, it is true, provide that the national authorities are required to inform OLAF, at its request, of action taken on its recommendations, the fact nonetheless remains that the wording of Article 11(6) refers to action taken, ‘if any’, and not to action that must be taken. |
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21

Under Article 11(3) of Regulation No 883/2013, the forwarding of the report and recommendations to the competent national authorities does not entail obligations regarding the action which those authorities must take on that report and recommendations in respect of the persons referred to in them. Although Article 11(6) of Regulation No 883/2013, as relied on by the applicant, does, it is true, provide that the national authorities are required to inform OLAF, at its request, of action taken on its recommendations, the fact nonetheless remains that the wording of Article 11(6) refers to action taken, ‘if any’, and not to action that must be taken.

| 22 | It therefore follows from the provisions of Regulation No 883/2013, and particularly from recital 31 and Article 11 of that regulation, that, as indicated in the case-law cited in paragraph 15 above, the report and recommendations drawn up by OLAF on completion of an external investigation and forwarded to the competent authorities of the Member States cannot lead automatically to the initiation of national administrative or judicial proceedings, or, a fortiori, to the adoption of subsequent legal measures. It is for the national authorities to decide what action to take, and they are accordingly the only authorities with the power to adopt decisions capable of affecting the legal position of those persons in relation to which OLAF has recommended that such proceedings be instigated. |
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22

It therefore follows from the provisions of Regulation No 883/2013, and particularly from recital 31 and Article 11 of that regulation, that, as indicated in the case-law cited in paragraph 15 above, the report and recommendations drawn up by OLAF on completion of an external investigation and forwarded to the competent authorities of the Member States cannot lead automatically to the initiation of national administrative or judicial proceedings, or, a fortiori, to the adoption of subsequent legal measures. It is for the national authorities to decide what action to take, and they are accordingly the only authorities with the power to adopt decisions capable of affecting the legal position of those persons in relation to which OLAF has recommended that such proceedings be instigated.

| 23 | That finding is not called into question by the fact, relied on by the applicant, that the second subparagraph of Article 11(1) of Regulation No 883/2013 provides that recommendations drawn up by OLAF ‘shall, where appropriate, indicate any disciplinary, administrative, financial and/or judicial action ... by the competent authorities of the Member States concerned’. |
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23

That finding is not called into question by the fact, relied on by the applicant, that the second subparagraph of Article 11(1) of Regulation No 883/2013 provides that recommendations drawn up by OLAF ‘shall, where appropriate, indicate any disciplinary, administrative, financial and/or judicial action ... by the competent authorities of the Member States concerned’.

| 24 | It should be noted that the term ‘doivent prendre’ in the French version of the second subparagraph of Article 11(1) of Regulation No 883/2013 and, in essence, in the Italian version (devono adottare) does not appear in other language versions of the same provision, such as the English, German, Bulgarian, Greek or Portuguese versions. |
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24

It should be noted that the term ‘doivent prendre’ in the French version of the second subparagraph of Article 11(1) of Regulation No 883/2013 and, in essence, in the Italian version (devono adottare) does not appear in other language versions of the same provision, such as the English, German, Bulgarian, Greek or Portuguese versions.

devono adottare

| 25 | It should be recalled that all the language versions of an EU legal provision must, in principle, be recognised as having the same weight. In order to maintain a uniform interpretation of EU law, in the case of divergence between those versions the provision in question must therefore be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see judgment of 20 September 2012, Hungary v Commission, T‐89/10, not published, EU:T:2012:451, paragraph 43 and the case-law cited therein). |
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25

It should be recalled that all the language versions of an EU legal provision must, in principle, be recognised as having the same weight. In order to maintain a uniform interpretation of EU law, in the case of divergence between those versions the provision in question must therefore be interpreted by reference to the purpose and general scheme of the rules of which it forms part (see judgment of 20 September 2012, Hungary v Commission, T‐89/10, not published, EU:T:2012:451, paragraph 43 and the case-law cited therein).

| 26 | In the present case, it is clear first of all that Article 11(1) of Regulation No 883/2013 relates, not to the effects, but only to the content of the report and recommendations. Thus, for example, in the English version of that provision, among others, the word ‘shall’ refers expressly to the content of the recommendations (shall ... indicate). Secondly, paragraphs 3 and 6 of Article 11 of Regulation No 883/2013 govern, respectively, the forwarding of the report and recommendations to the competent national authorities and the action taken in response. Those provisions do not lay down any obligations concerning the action to be taken by the authorities on the report and recommendations in respect of the persons referred to in them. Lastly, it should be noted that it follows from recital 31 of Regulation No 883/2013 that it is for the national authorities to decide what action should be taken on the basis of OLAF reports. |
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26

In the present case, it is clear first of all that Article 11(1) of Regulation No 883/2013 relates, not to the effects, but only to the content of the report and recommendations. Thus, for example, in the English version of that provision, among others, the word ‘shall’ refers expressly to the content of the recommendations (shall ... indicate). Secondly, paragraphs 3 and 6 of Article 11 of Regulation No 883/2013 govern, respectively, the forwarding of the report and recommendations to the competent national authorities and the action taken in response. Those provisions do not lay down any obligations concerning the action to be taken by the authorities on the report and recommendations in respect of the persons referred to in them. Lastly, it should be noted that it follows from recital 31 of Regulation No 883/2013 that it is for the national authorities to decide what action should be taken on the basis of OLAF reports.

shall ... indicate

| 27 | Consequently, in view of the purpose and general scheme of the rules at issue, Article 11(1) of Regulation No 883/2013 cannot be interpreted as entailing obligations for the national authorities to which the OLAF report and recommendations are addressed as to the action that they should take on the measures in question in respect of the persons referred to in them. |
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27

Consequently, in view of the purpose and general scheme of the rules at issue, Article 11(1) of Regulation No 883/2013 cannot be interpreted as entailing obligations for the national authorities to which the OLAF report and recommendations are addressed as to the action that they should take on the measures in question in respect of the persons referred to in them.

| 28 | In conclusion, the established case-law of the Court concerning measures taken by OLAF and the relevant provisions of Regulation No 883/2013 show that the contested measures do not produce any binding legal effect which is capable of bringing about a distinct change in the legal position of the applicant for the purposes of the case-law cited in paragraph 13 above, since it is for the national authorities to decide, in the exercise of their own powers, what action to take on the report of 26 November 2015 and, in particular, on the recommendation of 9 December 2015. |
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28

In conclusion, the established case-law of the Court concerning measures taken by OLAF and the relevant provisions of Regulation No 883/2013 show that the contested measures do not produce any binding legal effect which is capable of bringing about a distinct change in the legal position of the applicant for the purposes of the case-law cited in paragraph 13 above, since it is for the national authorities to decide, in the exercise of their own powers, what action to take on the report of 26 November 2015 and, in particular, on the recommendation of 9 December 2015.

| 29 | The same conclusion must be reached with respect to the ‘prior and strictly related measures taken by OLAF’, in other words, as stated in the observations on the objection of inadmissibility, the ‘interim information referred to in Article 12 of [Regulation No 883/2013]’ which OLAF allegedly forwarded to the Italian customs authorities. Without there being any need to rule on whether the action has been properly directed against those measures, something which the Commission disputes, it should be noted that, in any event, the forwarding of information by OLAF to the national authorities cannot be regarded as an act having an adverse effect since, under Article 12 of Regulation No 883/2013, it is for the authorities receiving information from OLAF to assess, within the limits of their own powers, the content and full significance of that information and, therefore, what action should be taken upon it (see, by analogy, judgment of 20 May 2010, Commission v Violetti and Others, T‐261/09 P, EU:T:2010:215, paragraph 47 and the case-law cited therein, and order of 22 June 2015, In vivo v Commission, T‐690/13, not published, EU:T:2015:519, paragraph 24). |
| --- | --- |

29

The same conclusion must be reached with respect to the ‘prior and strictly related measures taken by OLAF’, in other words, as stated in the observations on the objection of inadmissibility, the ‘interim information referred to in Article 12 of [Regulation No 883/2013]’ which OLAF allegedly forwarded to the Italian customs authorities. Without there being any need to rule on whether the action has been properly directed against those measures, something which the Commission disputes, it should be noted that, in any event, the forwarding of information by OLAF to the national authorities cannot be regarded as an act having an adverse effect since, under Article 12 of Regulation No 883/2013, it is for the authorities receiving information from OLAF to assess, within the limits of their own powers, the content and full significance of that information and, therefore, what action should be taken upon it (see, by analogy, judgment of 20 May 2010, Commission v Violetti and Others, T‐261/09 P, EU:T:2010:215, paragraph 47 and the case-law cited therein, and order of 22 June 2015, In vivo v Commission, T‐690/13, not published, EU:T:2015:519, paragraph 24).

| 30 | Even if, in the present case, the Italian customs authorities which notified to the applicant the customs measures referred to in paragraph 2 above did indeed base their actions on the interim information referred to in paragraph 29 above, or indeed, having been apprised of it, on the report of 26 November 2015 or the recommendation of 9 December 2015, that fact does not, however, mean that measures taken by OLAF produce binding legal effects, since the customs measures referred to in paragraph 2 above did not automatically flow from those measures taken by OLAF, but were decided on by the Italian customs authorities within the limits of their own powers. |
| --- | --- |

30

Even if, in the present case, the Italian customs authorities which notified to the applicant the customs measures referred to in paragraph 2 above did indeed base their actions on the interim information referred to in paragraph 29 above, or indeed, having been apprised of it, on the report of 26 November 2015 or the recommendation of 9 December 2015, that fact does not, however, mean that measures taken by OLAF produce binding legal effects, since the customs measures referred to in paragraph 2 above did not automatically flow from those measures taken by OLAF, but were decided on by the Italian customs authorities within the limits of their own powers.

| 31 | None of the arguments put forward by the applicant is of such a kind as to call into question those findings. |
| --- | --- |

31

None of the arguments put forward by the applicant is of such a kind as to call into question those findings.

| 32 | Firstly, the applicant argues that the contested measures preclude its right to be repaid or remitted import duties by the Customs and State Monopolies Authority under Articles 116 to 121 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 Union Customs Code’). It also contends that the contested measures harm its right to be registered as an authorised economic operator under Articles 38 and 39 of the Union Customs Code. |
| --- | --- |

32

Firstly, the applicant argues that the contested measures preclude its right to be repaid or remitted import duties by the Customs and State Monopolies Authority under Articles 116 to 121 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 Union Customs Code’). It also contends that the contested measures harm its right to be registered as an authorised economic operator under Articles 38 and 39 of the Union Customs Code.

| 33 | Those arguments cannot be accepted, since, in the light of the findings in paragraph 22 above, the report of 26 November 2015 and the recommendation of 9 December 2015 do not entail any automatic obligation for the national authorities to adopt a particular measure against the applicant, and it is for those authorities alone to decide, in the exercise of their own powers, what action is to be taken, including in the customs domain. |
| --- | --- |

33

Those arguments cannot be accepted, since, in the light of the findings in paragraph 22 above, the report of 26 November 2015 and the recommendation of 9 December 2015 do not entail any automatic obligation for the national authorities to adopt a particular measure against the applicant, and it is for those authorities alone to decide, in the exercise of their own powers, what action is to be taken, including in the customs domain.

| 34 | In that regard, it should be recalled that the Court has consistently held that the application of the substantive customs law of the European Union, including the adoption of decisions requiring post-clearance payment of customs duties not previously levied, comes within the exclusive competence of the national customs authorities. The decisions taken by those authorities in accordance with that law may be challenged before the national courts, and those courts may submit a request to the Court of Justice under Article 267 TFEU (judgment of 16 April 2015, Schenker Customs Agency v Commission, T‐576/11, EU:T:2015:206, paragraph 49 and the case-law cited therein; see also, to that effect, judgment of 12 November 2013, Wünsche Handelsgesellschaft International v Commission, T‐147/12, not published, EU:T:2013:587, paragraphs 24 and 25 and the case-law cited therein). |
| --- | --- |

34

In that regard, it should be recalled that the Court has consistently held that the application of the substantive customs law of the European Union, including the adoption of decisions requiring post-clearance payment of customs duties not previously levied, comes within the exclusive competence of the national customs authorities. The decisions taken by those authorities in accordance with that law may be challenged before the national courts, and those courts may submit a request to the Court of Justice under Article 267 TFEU (judgment of 16 April 2015, Schenker Customs Agency v Commission, T‐576/11, EU:T:2015:206, paragraph 49 and the case-law cited therein; see also, to that effect, judgment of 12 November 2013, Wünsche Handelsgesellschaft International v Commission, T‐147/12, not published, EU:T:2013:587, paragraphs 24 and 25 and the case-law cited therein).

| 35 | In particular, as regards, first, any application for repayment or remission of import duties, it should be noted that it is clear from the case-law that the national customs authorities exercise their own discretion over applications submitted by each importer, in order to take into account any particularity, of fact or of law, that characterises the specific situation of each operator (see, to that effect, judgment of 12 March 2015, Vestel Iberia and Makro autoservicio mayorista v Commission, T‐249/12 and T‐269/12, not published, EU:T:2015:150, paragraphs 79 to 82). |
| --- | --- |

35

In particular, as regards, first, any application for repayment or remission of import duties, it should be noted that it is clear from the case-law that the national customs authorities exercise their own discretion over applications submitted by each importer, in order to take into account any particularity, of fact or of law, that characterises the specific situation of each operator (see, to that effect, judgment of 12 March 2015, Vestel Iberia and Makro autoservicio mayorista v Commission, T‐249/12 and T‐269/12, not published, EU:T:2015:150, paragraphs 79 to 82).

| 36 | As regards, secondly, any application to be granted the status of authorised economic operator, it in no way follows from Articles 38 and 39 of the Union Customs Code or from Article 24 of Commission Implementing Regulation (EU) 2015/2447 of 24 November 2015 laying down detailed rules for implementing certain provisions of the Union Customs Code (OJ 2015 L 343, p. 558) (‘the Implementing Regulation’) that, in the present case, the applicant should automatically be regarded, by reason of the contested measures, as not satisfying the criterion laid down in Article 39(a) of the Union Customs Code that it must not have committed any serious infringement or repeated infringements of customs legislation and taxation rules, and must have had no record of serious criminal offences relating to its economic activity. |
| --- | --- |

36

As regards, secondly, any application to be granted the status of authorised economic operator, it in no way follows from Articles 38 and 39 of the Union Customs Code or from Article 24 of Commission Implementing Regulation (EU) 2015/2447 of 24 November 2015 laying down detailed rules for implementing certain provisions of the Union Customs Code (OJ 2015 L 343, p. 558) (‘the Implementing Regulation’) that, in the present case, the applicant should automatically be regarded, by reason of the contested measures, as not satisfying the criterion laid down in Article 39(a) of the Union Customs Code that it must not have committed any serious infringement or repeated infringements of customs legislation and taxation rules, and must have had no record of serious criminal offences relating to its economic activity.

| 37 | Under Article 29(4) of the Implementing Regulation, it is for the national customs authority to examine whether the criteria laid down in Article 39 of the Union Customs Code are fulfilled. To that end that authority has its own discretion to take account, in particular, of ‘the specific characteristics of economic operators, in particular of small and medium-sized enterprises’. The national customs authority can also, under Article 24(2) of the Implementing Regulation concerning the criterion referred to in Article 39(a) of the Union Customs Code, consider ‘an infringement to be of minor importance, in relation to the number or size of the related operations’ and take into account the fact that it ‘has no doubt as to the good faith of the applicant’. |
| --- | --- |

37

Under Article 29(4) of the Implementing Regulation, it is for the national customs authority to examine whether the criteria laid down in Article 39 of the Union Customs Code are fulfilled. To that end that authority has its own discretion to take account, in particular, of ‘the specific characteristics of economic operators, in particular of small and medium-sized enterprises’. The national customs authority can also, under Article 24(2) of the Implementing Regulation concerning the criterion referred to in Article 39(a) of the Union Customs Code, consider ‘an infringement to be of minor importance, in relation to the number or size of the related operations’ and take into account the fact that it ‘has no doubt as to the good faith of the applicant’.

| 38 | Consequently, since it is for the Italian customs authorities to apply EU customs law and, in particular, to make their own assessment of any application for repayment or remission submitted by the applicant and of any application for the status of authorised economic operator, the contested measures do not in any way prejudice the exercise of that discretion. |
| --- | --- |

38

Consequently, since it is for the Italian customs authorities to apply EU customs law and, in particular, to make their own assessment of any application for repayment or remission submitted by the applicant and of any application for the status of authorised economic operator, the contested measures do not in any way prejudice the exercise of that discretion.

| 39 | Secondly, the applicant alleges that, should its action be ruled inadmissible, it would be denied effective judicial protection, since the possibility of a reference for a preliminary ruling would be uncertain and hypothetical. |
| --- | --- |

39

Secondly, the applicant alleges that, should its action be ruled inadmissible, it would be denied effective judicial protection, since the possibility of a reference for a preliminary ruling would be uncertain and hypothetical.

| 40 | In that regard, it should be recalled that, as established in paragraph 22 above, it is for the national authorities to decide what action to take on the recommendations forwarded to them by OLAF. It is thus for those authorities to ascertain themselves whether the information received justifies or requires the bringing of proceedings. Consequently, judicial protection against such proceedings must be ensured at national level with all the guarantees provided by national law, including those which follow from the fundamental rights that, as an integral part of the general principles of EU law, must also be observed by the Member States when they implement EU rules. In proceedings brought at national level, the court seised has the possibility, or in some cases the obligation, by means of a request to the Court of Justice for a preliminary ruling under Article 267 TFEU, of putting questions to the Court of Justice, possibly at the instigation of the parties, on the interpretation of provisions of EU law which it considers necessary to enable it to give judgment (see, to that effect, order of 19 April 2005, Tillack v Commission, C‐521/04 P(R), EU:C:2005:240, paragraphs 38 and 39, and judgment of 20 July 2016, Oikonomopoulos v Commission, T‐483/13, EU:T:2016:421, paragraphs 28 and 32). |
| --- | --- |

40

In that regard, it should be recalled that, as established in paragraph 22 above, it is for the national authorities to decide what action to take on the recommendations forwarded to them by OLAF. It is thus for those authorities to ascertain themselves whether the information received justifies or requires the bringing of proceedings. Consequently, judicial protection against such proceedings must be ensured at national level with all the guarantees provided by national law, including those which follow from the fundamental rights that, as an integral part of the general principles of EU law, must also be observed by the Member States when they implement EU rules. In proceedings brought at national level, the court seised has the possibility, or in some cases the obligation, by means of a request to the Court of Justice for a preliminary ruling under Article 267 TFEU, of putting questions to the Court of Justice, possibly at the instigation of the parties, on the interpretation of provisions of EU law which it considers necessary to enable it to give judgment (see, to that effect, order of 19 April 2005, Tillack v Commission, C‐521/04 P(R), EU:C:2005:240, paragraphs 38 and 39, and judgment of 20 July 2016, Oikonomopoulos v Commission, T‐483/13, EU:T:2016:421, paragraphs 28 and 32).

| 41 | Moreover, with regard to the applicant’s argument that, in essence, a reference for a preliminary ruling would supposedly be less effective in the present case than a direct action for annulment, it should be recalled that such an allegation, even if proved, could not entitle the Court to usurp the function of the founding authority of the European Union in order to change the system of legal remedies and procedures established by the Treaties and designed to give the Court of Justice and the General Court power to review the legality of acts of the institutions. It certainly cannot make it possible to challenge acts which are not challengeable because they do not produce binding legal effects for the purposes of the first paragraph of Article 263 TFEU (see, by analogy, judgment of 27 June 2000, Salamander and Others v Parliament and Council, T‐172/98 and T‐175/98 to T‐177/98, EU:T:2000:168, paragraph 75 and the case-law cited therein, and order of 12 January 2007, SPM v Commission, T‐447/05, EU:T:2007:3, paragraph 82 and the case-law cited therein). |
| --- | --- |

41

Moreover, with regard to the applicant’s argument that, in essence, a reference for a preliminary ruling would supposedly be less effective in the present case than a direct action for annulment, it should be recalled that such an allegation, even if proved, could not entitle the Court to usurp the function of the founding authority of the European Union in order to change the system of legal remedies and procedures established by the Treaties and designed to give the Court of Justice and the General Court power to review the legality of acts of the institutions. It certainly cannot make it possible to challenge acts which are not challengeable because they do not produce binding legal effects for the purposes of the first paragraph of Article 263 TFEU (see, by analogy, judgment of 27 June 2000, Salamander and Others v Parliament and Council, T‐172/98 and T‐175/98 to T‐177/98, EU:T:2000:168, paragraph 75 and the case-law cited therein, and order of 12 January 2007, SPM v Commission, T‐447/05, EU:T:2007:3, paragraph 82 and the case-law cited therein).

| 42 | Thirdly, regarding OLAF’s alleged infringements of procedural rules, of the right to proof and to an inter partes hearing, and of fundamental rights and the applicant’s right to judicial protection against unlawful inquiries, it should be noted that, according to the case-law, procedural irregularities raised in an action for annulment, in terms of which it is argued, as in the present case, that they have vitiated a report of an OLAF investigation, cannot confer on that report the status of an act adversely affecting the applicant. A challenge lies against such failures only in support of an action directed against a subsequent challengeable act, to the extent to which they have influenced its content, and not independently of such an act (see judgment of 6 April 2006, Camós Grau v Commission, T‐309/03, EU:T:2006:110, paragraph 55 and the case-law cited therein). |
| --- | --- |

42

Thirdly, regarding OLAF’s alleged infringements of procedural rules, of the right to proof and to an inter partes hearing, and of fundamental rights and the applicant’s right to judicial protection against unlawful inquiries, it should be noted that, according to the case-law, procedural irregularities raised in an action for annulment, in terms of which it is argued, as in the present case, that they have vitiated a report of an OLAF investigation, cannot confer on that report the status of an act adversely affecting the applicant. A challenge lies against such failures only in support of an action directed against a subsequent challengeable act, to the extent to which they have influenced its content, and not independently of such an act (see judgment of 6 April 2006, Camós Grau v Commission, T‐309/03, EU:T:2006:110, paragraph 55 and the case-law cited therein).

inter partes

| 43 | Furthermore, it should be noted that, according to the case-law, the seriousness of an alleged infringement by the institution concerned or the extent of its adverse impact on the observance of fundamental rights cannot justify an exception to the absolute bars to proceedings laid down by the Treaty and make it possible to challenge acts that are not open to challenge because they do not produce binding legal effects. Whether an act is open to challenge cannot be deduced from its possible unlawfulness (see, to that effect, judgment of 15 January 2003, Philip Morris International v Commission, T‐377/00, T‐379/00, T‐380/00, T‐260/01 and T‐272/01, EU:T:2003:6, paragraph 87). |
| --- | --- |

43

Furthermore, it should be noted that, according to the case-law, the seriousness of an alleged infringement by the institution concerned or the extent of its adverse impact on the observance of fundamental rights cannot justify an exception to the absolute bars to proceedings laid down by the Treaty and make it possible to challenge acts that are not open to challenge because they do not produce binding legal effects. Whether an act is open to challenge cannot be deduced from its possible unlawfulness (see, to that effect, judgment of 15 January 2003, Philip Morris International v Commission, T‐377/00, T‐379/00, T‐380/00, T‐260/01 and T‐272/01, EU:T:2003:6, paragraph 87).

| 44 | Fourthly, the applicant claims that the information forwarded by OLAF to the Customs and State Monopolies Authority occasioned it non-material harm, through certain press releases issued by that Authority and newspaper articles referring to them. Even if such matters were capable of constituting harm, they cannot, however, confer on the report of 26 November 2015 and on the recommendation of 9 December 2015 the status of acts adversely affecting the applicant for the purposes of Article 263 TFEU (see, to that effect, judgment of 6 April 2006, Camós Grau v Commission, T‐309/03, EU:T:2006:110, paragraph 56). |
| --- | --- |

44

Fourthly, the applicant claims that the information forwarded by OLAF to the Customs and State Monopolies Authority occasioned it non-material harm, through certain press releases issued by that Authority and newspaper articles referring to them. Even if such matters were capable of constituting harm, they cannot, however, confer on the report of 26 November 2015 and on the recommendation of 9 December 2015 the status of acts adversely affecting the applicant for the purposes of Article 263 TFEU (see, to that effect, judgment of 6 April 2006, Camós Grau v Commission, T‐309/03, EU:T:2006:110, paragraph 56).

| 45 | Fifthly, the solution adopted in the order of 13 April 2011, Planet v Commission (T‐320/09, EU:T:2011:172), relied on by the applicant in support of the claim that the report of 26 November 2015 and the recommendation of 9 December 2015 are open to challenge, cannot be applied in the present case in view of the characteristics of the measures that were at issue. |
| --- | --- |

45

Fifthly, the solution adopted in the order of 13 April 2011, Planet v Commission (T‐320/09, EU:T:2011:172), relied on by the applicant in support of the claim that the report of 26 November 2015 and the recommendation of 9 December 2015 are open to challenge, cannot be applied in the present case in view of the characteristics of the measures that were at issue.

| 46 | First, it should be recalled that it is apparent from paragraphs 21 to 27 and 53 of the order of 13 April 2011, Planet v Commission (T‐320/09, EU:T:2011:172) that the case that gave rise to that order concerned measures adopted at the conclusion of a ‘special procedure’ leading to the registration of an entity in a warning list and, more precisely, OLAF’s request to the Commission’s accounting officer to activate a warning in respect of an entity in the early warning system (EWS) and the activation of the warning itself by the Commission’s accounting officer. Secondly, it is clear from paragraphs 47 and 48 of that order that those measures produced effects which brought about a distinct change in the legal position of the entity on the warning list, since, after activation of the warning, it was obliged, in order to obtain the commitment of EU financial resources, to comply with conditions or precautionary measures imposed on it by the authorising officers concerned. |
| --- | --- |

46

First, it should be recalled that it is apparent from paragraphs 21 to 27 and 53 of the order of 13 April 2011, Planet v Commission (T‐320/09, EU:T:2011:172) that the case that gave rise to that order concerned measures adopted at the conclusion of a ‘special procedure’ leading to the registration of an entity in a warning list and, more precisely, OLAF’s request to the Commission’s accounting officer to activate a warning in respect of an entity in the early warning system (EWS) and the activation of the warning itself by the Commission’s accounting officer. Secondly, it is clear from paragraphs 47 and 48 of that order that those measures produced effects which brought about a distinct change in the legal position of the entity on the warning list, since, after activation of the warning, it was obliged, in order to obtain the commitment of EU financial resources, to comply with conditions or precautionary measures imposed on it by the authorising officers concerned.

| 47 | In the present case, however, the contested measures adopted by OLAF are not binding on the authorities to which they are addressed and do not bring about a distinct change in the applicant’s legal position as regards the consequences which those authorities are required to draw from those measures. |
| --- | --- |

47

In the present case, however, the contested measures adopted by OLAF are not binding on the authorities to which they are addressed and do not bring about a distinct change in the applicant’s legal position as regards the consequences which those authorities are required to draw from those measures.

| 48 | Sixthly, the case-law cited by the applicant with a view to demonstrating that the Italian customs authorities have no discretion, namely the judgments of 23 November 1971, Bock v Commission (62/70, EU:C:1971:108), and of 17 January 1985, Piraiki-Patraiki and Others v Commission (11/82, EU:C:1985:18), cannot be applied in the present case. |
| --- | --- |

48

Sixthly, the case-law cited by the applicant with a view to demonstrating that the Italian customs authorities have no discretion, namely the judgments of 23 November 1971, Bock v Commission (62/70, EU:C:1971:108), and of 17 January 1985, Piraiki-Patraiki and Others v Commission (11/82, EU:C:1985:18), cannot be applied in the present case.

| 49 | It should be noted that it is apparent from paragraphs 3 to 11 of the judgment of 23 November 1971, Bock v Commission (62/70, EU:C:1971:108), and from paragraphs 2 to 32 of the judgment of 17 January 1985, Piraiki-Patraiki and Others v Commission (11/82, EU:C:1985:18), that those judgments do not relate to the question of whether the measures at issue produced binding legal effects for the purposes of the first paragraph of Article 263 TFEU, but to the question of whether those measures were of direct and individual concern to the applicants for the purposes of the fourth paragraph of Article 263 TFEU. |
| --- | --- |

49

It should be noted that it is apparent from paragraphs 3 to 11 of the judgment of 23 November 1971, Bock v Commission (62/70, EU:C:1971:108), and from paragraphs 2 to 32 of the judgment of 17 January 1985, Piraiki-Patraiki and Others v Commission (11/82, EU:C:1985:18), that those judgments do not relate to the question of whether the measures at issue produced binding legal effects for the purposes of the first paragraph of Article 263 TFEU, but to the question of whether those measures were of direct and individual concern to the applicants for the purposes of the fourth paragraph of Article 263 TFEU.

| 50 | In any event, it must be observed that, in paragraphs 23 and 26 of the order of 6 March 2014, Northern Ireland Department of Agriculture and Rural Development v Commission (C‐248/12 P, not published, EU:C:2014:137), the Court of Justice itself found that the solution laid down in the judgment of 17 January 1985, Piraiki-Patraiki and Others v Commission (11/82, EU:C:1985:18), was due to the specific situations in relation to which that solution was adopted, and that that was apparent from the very wording of that judgment. |
| --- | --- |

50

In any event, it must be observed that, in paragraphs 23 and 26 of the order of 6 March 2014, Northern Ireland Department of Agriculture and Rural Development v Commission (C‐248/12 P, not published, EU:C:2014:137), the Court of Justice itself found that the solution laid down in the judgment of 17 January 1985, Piraiki-Patraiki and Others v Commission (11/82, EU:C:1985:18), was due to the specific situations in relation to which that solution was adopted, and that that was apparent from the very wording of that judgment.

| 51 | In that regard, it need only be recalled that both the judgment of 23 November 1971, Bock v Commission (62/70, EU:C:1971:108), and the judgment of 17 January 1985, Piraiki-Patraiki and Others v Commission (11/82, EU:C:1985:18), concerned specific cases in which the Commission, at the request of a Member State, had authorised that Member State to take protective measures. In those circumstances, there can be no doubt that the Member State which has requested those measures will act to give due and full effect to them (see order of 8 July 2004, Regione Siciliana v Commission, T‐341/02, EU:T:2004:228, paragraph 79). However, those circumstances do not obtain in the present case. |
| --- | --- |

51

In that regard, it need only be recalled that both the judgment of 23 November 1971, Bock v Commission (62/70, EU:C:1971:108), and the judgment of 17 January 1985, Piraiki-Patraiki and Others v Commission (11/82, EU:C:1985:18), concerned specific cases in which the Commission, at the request of a Member State, had authorised that Member State to take protective measures. In those circumstances, there can be no doubt that the Member State which has requested those measures will act to give due and full effect to them (see order of 8 July 2004, Regione Siciliana v Commission, T‐341/02, EU:T:2004:228, paragraph 79). However, those circumstances do not obtain in the present case.

| 52 | It follows from all of the foregoing that, since the contested measures and, in any event, the ‘prior and strictly related measures taken by OLAF’ did not produce binding legal effects, they cannot be regarded as acts amenable to challenge for the purposes of the first paragraph of Article 263 TFEU. |
| --- | --- |

52

It follows from all of the foregoing that, since the contested measures and, in any event, the ‘prior and strictly related measures taken by OLAF’ did not produce binding legal effects, they cannot be regarded as acts amenable to challenge for the purposes of the first paragraph of Article 263 TFEU.

| 53 | Accordingly, the present action must be dismissed as inadmissible. |
| --- | --- |

53

Accordingly, the present action must be dismissed as inadmissible.

Costs

Costs

| 54 | 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. |
| --- | --- |

54

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 (Seventh Chamber)
  hereby orders: |
| --- | --- |

On those grounds,

THE GENERAL COURT (Seventh Chamber)

hereby orders:

| | 1. | The action is dismissed as inadmissible. |
| --- | --- | --- |

1.

1.

The action is dismissed as inadmissible.

The action is dismissed as inadmissible.

| | 2. | Inox Mare Srl shall bear its own costs and shall pay those incurred by the European Commission.

  Luxembourg, 21 June 2017. |
| --- | --- | --- |

2.

2.

Inox Mare Srl shall bear its own costs and shall pay those incurred by the European Commission.

Inox Mare Srl shall bear its own costs and shall pay those incurred by the European Commission.

Luxembourg, 21 June 2017.

| | E. Coulon
  Registrar
  V. Tomljenović
  President |
| --- | --- |

E. Coulon

Registrar

V. Tomljenović

President

---

(
  *1
  )	Language of the case: Italian.

*1