JUDGMENT OF THE COURT (Seventh Chamber)
29 February 2024 (*)
(Appeal – Dumping – Imports of stainless steel cold-rolled flat products originating in China and Taiwan – Definitive anti-dumping duties – Action for annulment – Association representing the interests of importers – Regulatory act entailing implementing measures)
In Case C‑95/23 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 17 February 2023,
European Association of Non-Integrated Metal Importers & distributors (Euranimi),
established in Brussels (Belgium), represented by M. Campa, avvocato, P. Gjørtler, advokat, D. Rovetta and V. Villante, avvocati,
appellant,
the other party to the proceedings being:
European Commission, represented by G. Luengo and J. Zieliński, acting as Agents,
defendant at first instance,
THE COURT (Seventh Chamber),
composed of F. Biltgen, President of the Chamber, J. Passer (Rapporteur) and M.L. Arastey Sahún, Judges,
Advocate General: M. Szpunar,
Registrar: A. Calot Escobar,
having regard to the written procedure,
having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,
gives the following
Judgment
1        By its appeal, European Association of Non-Integrated Metal Importers & distributors (Euranimi) seeks to have set aside the order of the General Court of the European Union of 8 December 2022, Euranimi v Commission (T‑769/21, EU:T:2022:786) (‘the order under appeal’), by which the General Court dismissed its action for annulment of Commission Implementing Regulation (EU) 2021/1483 of 15 September 2021 imposing a definitive anti-dumping duty on imports of stainless steel cold-rolled flat products originating in the People’s Republic of China and Taiwan following an expiry review pursuant to Article 11(2) of Regulation (EU) 2016/1036 of the European Parliament and of the Council (OJ 2021 L 327, p. 1) (‘the contested regulation’).
Legal context
2        Article 5 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1) (‘the Customs Code’), entitled ‘Definitions’, is worded as follows:
‘For the purposes of the [Customs] Code, the following definitions shall apply:
…
(18)      “customs debt” means the obligation on a person to pay the amount of import or export duty which applies to specific goods under the customs legislation in force;
…
(26)      “release of goods” means the act whereby the customs authorities make goods available for the purposes specified for the customs procedure under which they are placed;
…’
3        Under Article 6(1) and (4) of the Customs Code:
‘1.      All exchanges of information, such as declarations, applications or decisions, between customs authorities and between economic operators and customs authorities, and the storage of such information, as required under the customs legislation, shall be made using electronic data-processing techniques.
…
4.      By way of derogation from paragraph 1, the [European] Commission may adopt in exceptional cases decisions allowing one or several Member States to use means for the exchange and storage of information other than electronic data-processing techniques.
Such a decision on a derogation shall be justified by the specific situation of the Member State requesting it and the derogation shall be granted for a specific period of time. The derogation shall be reviewed periodically and may be extended for further specific periods of time upon further application by the Member State to which it is addressed. It shall be revoked where no longer justified.
The derogation shall not affect the exchange of information between the Member State to which it is addressed and other Member States nor the exchange and storage of information in other Member States for the purpose of the application of the customs legislation.’
4        Article 44 of that code provides:
‘1.      Any person shall have the right to appeal against any decision taken by the customs authorities relating to the application of the customs legislation which concerns him or her directly and individually.
Any person who has applied to the customs authorities for a decision and has not obtained a decision on that application within the time limits referred to in Article 22(3) shall also be entitled to exercise the right of appeal.
2.      The right of appeal may be exercised in at least two steps:
(a)      initially, before the customs authorities or a judicial authority or other body designated for that purpose by the Member States;
(b)      subsequently, before a higher independent body, which may be a judicial authority or an equivalent specialised body, according to the provisions in force in the Member States.
3.      The appeal shall be lodged in the Member State where the decision was taken or was applied for.
4.      Member States shall ensure that the appeals procedure enables the prompt confirmation or correction of decisions taken by the customs authorities.’
5        Article 46(1) to (4) of that code provides:
‘1.      The customs authorities may carry out any customs controls they deem necessary.
Customs controls may in particular consist of examining goods, taking samples, verifying the accuracy and completeness of the information given in a declaration or notification and the existence, authenticity, accuracy and validity of documents, examining the accounts of economic operators and other records, inspecting means of transport, inspecting luggage and other goods carried by or on persons and carrying out official enquiries and other similar acts.
2.      Customs controls, other than random checks, shall primarily be based on risk analysis using electronic data-processing techniques, with the purpose of identifying and evaluating the risks and developing the necessary counter-measures, on the basis of criteria developed at national, Union and, where available, international level.
3.      Customs controls shall be performed within a common risk management framework, based upon the exchange of risk information and risk analysis results between customs administrations and establishing common risk criteria and standards, control measures and priority control areas.
Controls based upon such information and criteria shall be carried out without prejudice to other controls carried out in accordance with paragraph 1 or with other provisions in force.
4.      Customs authorities shall undertake risk management to differentiate between the levels of risk associated with goods subject to customs control or supervision and to determine whether the goods will be subject to specific customs controls, and if so, where.
The risk management shall include activities such as collecting data and information, analysing and assessing risk, prescribing and taking action and regularly monitoring and reviewing that process and its outcomes, based on international, Union and national sources and strategies.’
6        Article 48 of that code is worded as follows:
‘For the purpose of customs controls, the customs authorities may verify the accuracy and completeness of the information given in a customs declaration, temporary storage declaration, entry summary declaration, exit summary declaration, re-export declaration or re-export notification, and the existence, authenticity, accuracy and validity of any supporting document and may examine the accounts of the declarant and other records relating to the operations in respect of the goods in question or to prior or subsequent commercial operations involving those goods after having released them. Those authorities may also examine such goods and/or take samples where it is still possible for them to do so.
Such controls may be carried out at the premises of the holder of the goods or of the holder’s representative, of any other person directly or indirectly involved in those operations in a business capacity or of any other person in possession of those documents and data for business purposes.’
7        Article 79(1) and (2) of the Customs Code is worded as follows:
‘1.      For goods liable to import duty, a customs debt on import shall be incurred through non-compliance with any of the following:
(a)      one of the obligations laid down in the customs legislation concerning the introduction of non-Union goods into the customs territory of the Union, their removal from customs supervision, or the movement, processing, storage, temporary storage, temporary admission or disposal of such goods within that territory;
(b)      one of the obligations laid down in the customs legislation concerning the end-use of goods within the customs territory of the Union;
(c)      a condition governing the placing of non-Union goods under a customs procedure or the granting, by virtue of the end-use of the goods, of duty exemption or a reduced rate of import duty.
2.      The time at which the customs debt is incurred shall be either of the following:
(a)      the moment when the obligation the non-fulfilment of which gives rise to the customs debt is not met or ceases to be met;
(b)      the moment when a customs declaration is accepted for the placing of goods under a customs procedure where it is established subsequently that a condition governing the placing of the goods under that procedure or the granting of a duty exemption or a reduced rate of import duty by virtue of the end-use of the goods was not in fact fulfilled.’
8        Article 87 of that code provides:
‘1.      A customs debt shall be incurred at the place where the customs declaration or the re-export declaration referred to in Articles 77, 78 and 81 is lodged.
In all other cases, the place where a customs debt is incurred shall be the place where the events from which it arises occur.
If it is not possible to determine that place, the customs debt shall be incurred at the place where the customs authorities conclude that the goods are in a situation in which a customs debt is incurred.
2.      If the goods have been placed under a customs procedure which has not been discharged or when a temporary storage did not end properly, and the place where the customs debt is incurred cannot be determined pursuant to the second or third subparagraphs of paragraph 1 within a specific time limit, the customs debt shall be incurred at the place where the goods were either placed under the procedure concerned or were introduced into the customs territory of the Union under that procedure or were in temporary storage.
3.      Where the information available to the customs authorities enables them to establish that the customs debt may have been incurred in several places, the customs debt shall be deemed to have been incurred at the place where it was first incurred.
4.      If a customs authority establishes that a customs debt has been incurred under Article 79 or Article 82 in another Member State and the amount of import or export duty corresponding to that debt is lower than EUR 10 000, the customs debt shall be deemed to have been incurred in the Member State where the finding was made.’
9        Article 101(1) and (2) of that code provides:
‘1.      The amount of import or export duty payable shall be determined by the customs authorities responsible for the place where the customs debt is incurred, or is deemed to have been incurred in accordance with Article 87, as soon as they have the necessary information.
2.      Without prejudice to Article 48, the customs authorities may accept the amount of import or export duty payable determined by the declarant.’
10      Under Article 102 of the same code:
‘1.      The customs debt shall be notified to the debtor in the form prescribed at the place where the customs debt is incurred, or is deemed to have been incurred in accordance with Article 87.
The notification referred to in the first subparagraph shall not be made in any of the following cases:
(a)      where, pending a final determination of the amount of import or export duty, a provisional commercial policy measure taking the form of a duty has been imposed;
(b)      where the amount of import or export duty payable exceeds that determined on the basis of a decision made in accordance with Article 33;
(c)      where the original decision not to notify the customs debt or to notify it with an amount of import or export duty at a figure less than the amount of import or export duty payable was taken on the basis of general provisions invalidated at a later date by a court decision;
(d)      where the customs authorities are exempted under the customs legislation from notification of the customs debt.
2.      Where the amount of import or export duty payable is equal to the amount entered in the customs declaration, release of the goods by the customs authorities shall be equivalent to notifying the debtor of the customs debt.
3.      Where paragraph 2 does not apply, the customs debt shall be notified to the debtor by the customs authorities when they are in a position to determine the amount of import or export duty payable and take a decision thereon.
However, where the notification of the customs debt would prejudice a criminal investigation, the customs authorities may defer that notification until such time as it no longer prejudices the criminal investigation.
4.      Provided that payment has been guaranteed, the customs debt corresponding to the total amount of import or export duty relating to all the goods released to one and the same person during a period fixed by the customs authorities may be notified at the end of that period. The period fixed by the customs authorities shall not exceed 31 days.’
11      Article 103 of the Customs Code provides:
‘1.      No customs debt shall be notified to the debtor after the expiry of a period of three years from the date on which the customs debt was incurred.
2.      Where the customs debt is incurred as the result of an act which, at the time it was committed, was liable to give rise to criminal court proceedings, the three-year period laid down in paragraph 1 shall be extended to a period of a minimum of five years and a maximum of 10 years in accordance with national law.
3.      The periods laid down in paragraphs 1 and 2 shall be suspended where:
(a)      an appeal is lodged in accordance with Article 44; such suspension shall apply from the date on which the appeal is lodged and shall last for the duration of the appeal proceedings; or
(b)      the customs authorities communicate to the debtor, in accordance with Article 22(6), the grounds on which they intend to notify the customs debt; such suspension shall apply from the date of that communication until the end of the period within which the debtor is given the opportunity to express his or her point of view.
4.      Where a customs debt is reinstated pursuant to Article 116(7), the periods laid down in paragraphs 1 and 2 shall be considered as suspended from the date on which the application for repayment or remission was submitted in accordance with Article 121, until the date on which the decision on the repayment or remission was taken.’
12      Under Article 104(1) of that code:
‘The customs authorities referred to in Article 101 shall enter in their accounts, in accordance with the national legislation, the amount of import or export duty payable as determined in accordance with that Article.
The first subparagraph shall not apply in cases referred to in the second subparagraph of Article 102(1).’
13      Article 172(1) of that code is worded as follows:
‘Customs declarations which comply with the conditions laid down in this Chapter shall be accepted by the customs authorities immediately, provided that the goods to which they refer have been presented to customs.’
14      Article 188 of that same code provides:
‘The customs authorities may, for the purpose of verifying the accuracy of the particulars contained in a customs declaration which has been accepted:
(a)      examine the declaration and the supporting documents;
(b)      require the declarant to provide other documents;
(c)      examine the goods;
(d)      take samples for analysis or for detailed examination of the goods.’
15      The first subparagraph of Article 194(1) of the Customs Code provides:
‘Where the conditions for placing the goods under the procedure concerned are fulfilled and provided that any restriction has been applied and the goods are not subject to any prohibition, the customs authorities shall release the goods as soon as the particulars in the customs declaration have been verified or are accepted without verification.’
Background to the dispute
16      The background to the dispute was set out in paragraphs 2 to 8 of the order under appeal. For the purposes of the present proceedings, that background may be summarised as follows.
17      On 26 August 2015, the Commission adopted Implementing Regulation (EU) 2015/1429 imposing a definitive anti-dumping duty on imports of stainless steel cold-rolled flat products originating in the People’s Republic of China and Taiwan (OJ 2015 L 224, p. 10) (‘the initial measures’).
18      Following the publication of a notice of the impending expiry of certain anti-dumping measures (OJ 2019 C 405, p. 11), the Commission received, on 26 May 2020, from the European Steel Association (Eurofer), which represents more than 25% of the total EU production of stainless steel cold-rolled flat products (‘the product concerned’), a request for review pursuant to Article 11(2) of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21). According to that request, the expiry of the initial measures would be likely to result in continuation or recurrence of dumping and injury to the EU industry.
19      On 25 August 2020, the Commission opened the review procedure and invited interested parties to contact it in order to participate in the investigation. In addition, the Commission informed in particular known importers, users and traders, as well as associations known to be concerned, about the initiation of the investigation and invited them to participate.
20      The interested parties had an opportunity to comment on the initiation of the initial measures expiry review and to request a hearing with the Commission and/or the Hearing Officer in trade proceedings.
21      On 2 July 2021, the Commission communicated the final General Disclosure document containing the essential facts and considerations on the basis of which it intended to maintain the anti-dumping duties in force regarding imports from the countries concerned. All parties were granted a period within which they could present their observations on that information.
22      The appellant, Euranimi, an association representing the interests of European importers, distributors, traders and processors dealing with non-integrated steel, stainless steel and metal products, expressed its views on several occasions during the remainder of the anti-dumping proceeding in written observations and oral observations at a hearing.
23      On 15 September 2021, the Commission adopted the contested regulation, which provides as follows:
‘Article 1
A definitive anti-dumping duty is imposed on imports [of the product concerned] and originating in the People’s Republic of China and Taiwan.
The rates of the definitive anti-dumping duty applicable to the net, free-at-Union-frontier price, before duty, of the product described in paragraph 1 and produced by the companies listed below shall be as follows:
Country
Company
Definitive anti-dumping duty (%)
TARIC additional code
PRC
Shanxi Taigang Stainless Steel Co., Ltd, Taiyuan City
24.4
C024
PRC
Tianjin TISCO & TPCO Stainless Steel Co Ltd, Tianjin City
24.4
C025
PRC
Other cooperating companies listed in Annex
24.6
PRC
All other companies
25.3
C999
Taiwan
Chia Far Industrial Factory Co., Ltd, Taipei City
0
C030
Taiwan
All other companies
6.8
C999
…
Unless otherwise specified, the relevant provisions in force concerning customs duties shall apply.’
The action before the General Court
24      By application lodged at the Registry of the General Court on 10 December 2021, the appellant brought an action for annulment of the contested regulation.
25      By document filed at the Court Registry on 24 February 2022, the Commission requested a ruling on the inadmissibility of the action.
26      By the order under appeal, the General Court dismissed the action as inadmissible on the grounds, first, that neither the members of the appellant nor the appellant itself, in its capacity as their representative, were individually concerned by the contested regulation, secondly, that that regulation entailed implementing measures vis-à-vis the appellant’s members which did not entitle them to rely on the final limb of the fourth paragraph of Article 263 TFEU, and, thirdly, that the appellant had not established its standing to bring proceedings for the purposes of defending its own interests.
The proceedings before the Court of Justice
27      By its appeal, the appellant claims that the Court should:
–        declare the present appeal admissible;
–        set aside the order under appeal and declare the action at first instance admissible;
–        refer the case back to the General Court for it to decide on the merits of that action; and
–        order the Commission to bear the costs related to both the appeal and the proceedings at first instance.
28      The Commission contends that the Court should:
–        dismiss the appeal as unfounded; and
–        order the appellant to pay the costs of the proceedings.
The appeal
29      In support of its appeal, the appellant puts forward three grounds of appeal. The first ground of appeal alleges an error of law in the interpretation of the fourth paragraph of Article 263 TFEU, more particularly of the requirement of ‘direct and individual concern’ to the appellant and an erroneous characterisation of the facts. The second ground of appeal alleges an error of law in the interpretation of the fourth paragraph of Article 263 TFEU, more particularly of the concept of ‘regulatory act which … does not entail implementing measures’, of an erroneous characterisation of the facts and a distortion of the evidence. The third ground of appeal alleges an erroneous characterisation of the facts and a distortion of the evidence.
The first ground of appeal
Arguments of the parties
30      By its first ground of appeal, the appellant complains that the General Court, in paragraphs 39 to 71 of the order under appeal, misinterpreted the fourth paragraph of Article 263 TFEU and mischaracterised the facts in holding that the contested regulation was not of individual concern to the appellant and that that action was therefore inadmissible.
31      The General Court did not carry out an overall analysis of the appellant’s situation with regard to the criterion of ‘direct and individual concern’ but assessed each of the criteria established by the case-law independently of each other. Furthermore, the General Court failed to take into account important facts set out in the application for annulment.
32      Thus, first, the appellant actively participated in the anti-dumping proceeding. When analysing that participation, the General Court did not examine whether the appellant’s contribution was ‘immediately participatory and proactive’. The General Court merely found, in paragraph 52 of the order under appeal, that the appellant began to participate in the proceeding which resulted in the adoption of the contested regulation at a very advanced stage of that proceeding. According to the appellant, a correct assessment of that participation should have led the General Court to consider that it had not been marginal, since the appellant had raised important questions about the contested regulation, which had been ignored by the Commission.
33      Secondly, the appellant’s members are so dependent on imports of the products concerned from the companies named in the contested regulation that their companies’ total supply requirements depend on them, at a level of between 50% and 65%. Therefore, the General Court’s consideration, in paragraph 62 of the order under appeal, that, in essence, the appellant’s members can use alternative sources of supply is not relevant. That option is in fact impracticable since those members have contracts which bind them to their suppliers and the circumstance that the latter are subject to anti-dumping duties does not constitute a valid reason for the termination of those contracts. At the same time, the named exporter subject to an anti-dumping duty of 0%, Chia Far Industrial Factory, is unable to supply the product concerned in sufficient quantities to satisfy the needs of the appellant’s members.
34      Those facts should have made it possible to differentiate the appellant’s members concerned, and therefore the appellant itself, from any other importer of the product concerned. It follows from that situation that the contested regulation is of individual concern to the appellant and its members.
35      In paragraph 60 of the order under appeal, the General Court criticised the appellant for failing to provide sufficient details regarding the negative economic effects of the anti-dumping duties on its members. According to the appellant, the fact that 50% to 65% of the activity of its members depends on imports of the product concerned already demonstrates in itself the significant impact on their situation.
36      The Commission disputes the appellant’s arguments and contends that the first ground of appeal should be dismissed.
Findings of the Court of Justice
37      It follows from settled case-law that an association which is responsible for protecting the collective interests of certain undertakings is, as a rule, entitled to bring an action for annulment under the fourth paragraph of Article 263 TFEU only if it can assert its own interest or if the undertakings which it represents or some of those undertakings themselves have locus standi (judgment of 21 September 2023, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, C‑478/21 P, EU:C:2023:685, paragraph 80 and the case-law cited).
38      Accordingly, under that provision, an action brought by an association acting in place of one or more of its members who could themselves have brought an admissible action will itself be admissible (judgment of 21 September 2023, China Chamber of Commerce for Import and Export of Machinery and Electronic Products and Others v Commission, C‑478/21 P, EU:C:2023:685, paragraph 81 and the case-law cited).
39      Furthermore, it follows from settled case-law that, although regulations imposing anti-dumping duties in respect of a product are legislative in nature and scope, in that they apply to all the traders concerned, it is not inconceivable that some of them may be of direct and individual concern (judgment of 3 December 2020, Changmao Biochemical Engineering v Distillerie Bonollo and Others, C‑461/18 P, EU:C:2020:979, paragraph 63 and the case-law cited).
40      Thus, in its case-law, the Court has identified certain categories of traders that may be individually concerned by a regulation imposing an anti-dumping duty, without prejudice to the possibility that other traders may be individually concerned by reason of certain attributes which are peculiar to them and which differentiate them from all other persons (judgment of 10 March 2021, Von Aschenbach & Voss, C‑708/19, EU:C:2021:190, paragraph 40 and the case-law cited).
41      The following may be individually concerned by a regulation imposing an anti-dumping duty: first, those of the producers and exporters of the product in question which have been charged with practising dumping on the basis of information relating to their business activities; second, importers of that product whose resale prices were taken into account for the construction of export prices and which are consequently concerned by the findings relating to the existence of dumping; and, third, importers associated with exporters of the product in question, particularly where the export price has been calculated on the basis of those importers’ resale prices on the EU market and where the anti-dumping duty itself has been calculated on the basis of those resale prices (judgment of 10 March 2021, Von Aschenbach & Voss, C‑708/19, EU:C:2021:190, paragraph 41 and the case-law cited).
42      Therefore, the status of importer cannot, on its own, be sufficient to support the view that an importer is individually concerned by a regulation imposing an anti-dumping duty. Even if associated with exporters of the product in question, an importer is individually concerned only if it is able to prove that information relating to its business activities has been taken into account for the purpose of establishing dumping or, failing that, that it has other attributes which are peculiar to it and which differentiate it from all other persons (judgment of 10 March 2021, Von Aschenbach & Voss, C‑708/19, EU:C:2021:190, paragraph 42 and the case-law cited).
43      In the present case, with regard, in the first place, to the appellant’s argument that the General Court did not carry out an overall analysis of its situation with regard to the criterion of ‘direct and individual concern’, it should be noted that the General Court, first, in paragraphs 39 to 45 of the order under appeal, correctly reported on the case-law of the Court of Justice recalled in paragraphs 39 to 42 of the present judgment, describing the conditions under which traders who are not addressees of the anti-dumping regulation the annulment of which they seek can be considered as being individually and directly concerned by that regulation.
44      Next, the General Court, after recalling, in paragraphs 40 to 44 of the order under appeal, that the anti-dumping regulations, although being of a legislative character inasmuch as they apply to all the traders concerned, may be of individual concern in certain circumstances to certain traders, in particular importers whose information relating to their business activity has been taken into account for the purpose of establishing dumping or calculating anti-dumping duties, noted, in paragraphs 46 and 47 of that order, that the appellant did not claim that its members found themselves in a situation corresponding to the scenarios thus identified by the case-law.
45      The appellant neither disputes that case-law nor that assessment of the General Court.
46      The General Court noted, in paragraph 45 of the order under appeal, that the recognition of legal standing to bring proceedings of certain categories of traders by reason of the use of information relating to their business activity cannot prevent other traders from also being recognised as individually concerned, by reason of certain attributes which are peculiar to them and which differentiate them from all other persons. In that context, the Court considered, in paragraphs 54 and 55 of that order, that even if the mere participation of the appellant and one of its members in the anti-dumping proceeding did not have the effect of distinguishing the appellant individually, other factors could contribute to differentiating it for the purposes of the fourth paragraph of Article 263 TFEU.
47      The General Court recalled in paragraph 56 of that order that the Court of Justice recognised that that was the case in respect of an independent importer, which had proved, first, that it was the largest importer of the product forming the subject matter of the anti-dumping measure and, at the same time, the end-user of that product, secondly, that its business activities depended to a very large extent on those imports and, thirdly, that those activities were seriously affected by the anti-dumping regulation at issue in view of the limited number of manufacturers of the product concerned and of the difficulties which it encountered in obtaining supplies from the sole EU producer, which, moreover, was its main competitor for the processed product. In paragraphs 58 to 67 of that order, the General Court examined the specific situation of the appellant’s members and found that the latter had not established that that situation was, in any of its aspects, similar to that of such an importer.
48      It follows from the foregoing that the General Court duly took into consideration and applied to the present case the various aspects identified by the case-law as being relevant in determining the condition of admissibility of an action for annulment of a regulation establishing anti-dumping duties, based on the existence of an individual interest for the appellant.
49      In the second place, according to the appellant, the General Court, in its assessment of the existence of an individual interest, did not correctly take into account certain of the elements produced before it. In that regard, it claims that the General Court incorrectly characterised its participation in the anti-dumping proceeding as ‘marginal’, whereas, according to it, that participation had been ‘immediately participatory and proactive’, which the General Court should have found if it had made a correct assessment of the factual situation.
50      That argument cannot be accepted. In the present case, the General Court held, in paragraph 51 of the order under appeal, that the appellant was not justified in maintaining that it was individually concerned by the contested regulation solely because its participation in the anti-dumping proceeding, in its capacity as representative of its members, had affected the outcome of that proceeding. In support of that consideration, the General Court put forward three reasons. First of all, the appellant had not substantiated its claim in any way. Next, all of the appellant’s observations made in the context of that proceeding were rejected by the Commission. Lastly, the General Court correctly recalled that the participation of an undertaking in an anti-dumping proceeding is not capable, in itself, of giving rise to a right to bring a direct action against the anti-dumping regulation on which that proceeding was based. To those three grounds, the General Court added a fourth, in paragraph 52 of that order, according to which, in essence, in the present case, the findings set out in the contested regulation could not have even been of individual concern to the appellant’s members, in so far as, first, that appellant had started to participate in the proceeding at a very advanced stage of that proceeding, following the communication of the General Disclosure document, and, secondly, that, although one of its members came forward within the time limit provided for in the notice of initiation, it did not however reply to the questionnaire or cooperate with the expiry review of the initial measures.
51      It follows that the reasons set out in paragraph 51 of the order under appeal, which are not criticised by the appellant, are sufficient to justify the General Court’s decision to reject its argument that the appellant’s participation in the proceeding before the Commission, in its capacity as representative of its members, had affected the outcome of that proceeding. Accordingly, the reasons set out in paragraph 52 of that order, by which, contrary to what the appellant maintains, the General Court did not, strictly speaking, find that the latter’s participation in the anti-dumping proceeding was merely ‘marginal’, are, in any event, repetitive and the appellant’s argument which criticises them is therefore ineffective.
52      As regards the appellant’s argument that some of the importers whose interests it protects are dependent on imports from the exporters named in the contested regulation for 50% to 65% of their needs, with the result that that circumstance should have led the General Court to conclude that that regulation was of individual concern to it, it should be noted that the General Court considered, in paragraph 60 of the order under appeal, that those percentages, based on statements of the appellant’s members, were not substantiated, and that even if they corresponded to reality, that appellant did not show that those members were in a different situation from the other importers. However, before the Court of Justice, the appellant has merely reaffirmed, first, that the statements of its members constituted sufficient proof of the percentages alleged at first instance. However, an appeal or ground of appeal which, without even including an argument specifically identifying the error of law allegedly vitiating the judgment or order which the appellant seeks to have set aside, simply reproduces the pleas in law and arguments already put forward before the General Court, must be declared inadmissible. Such an appeal or ground of appeal amounts in reality to no more than a request for re-examination of the application submitted to the General Court, which the Court of Justice does not have jurisdiction to undertake on appeal (judgment of 15 July 2021, Deutsche Lufthansa v Commission, C‑453/19 P, EU:C:2021:608, paragraph 96 and the case-law cited).
53      Secondly, in order to demonstrate that the appellant’s members are in a different situation from other importers, the appellant maintains, in essence, that its members are, with regard to the products covered by the contested regulation and which are of high quality, dependent on exporters from China and Taiwan. That reference to ‘high-quality’ products, being made for the first time before the Court of Justice and requesting, moreover, it to carry out a re-examination of the merits of the action, must be rejected as being inadmissible. Under the second sentence of Article 170(1) of the Rules of Procedure of the Court of Justice, the subject matter of the proceedings before the General Court may not be changed in the appeal. Thus, according to settled case-law, to allow a party to put forward for the first time before the Court of Justice pleas in law and arguments which it has not raised before the General Court would mean allowing that party to bring before the Court of Justice, whose jurisdiction in appeals is limited, a case of wider ambit than that which came before the General Court. In an appeal, the jurisdiction of the Court of Justice is thus confined to a review of the assessment of the General Court of the pleas and arguments debated before it (judgment of 16 November 2023, Colombani v EEAS, C‑595/22 P, EU:C:2023:884, paragraph 31 and the case-law cited).
54      Lastly, and contrary to what the appellant claims, the General Court did not state that its members could change supplier for the benefit of a particular exporting producer subject to a 0% anti-dumping duty under the contested regulation. In paragraph 63 of the order under appeal, the Court, in response to the appellant’s argument that the needs of its members could not be met by that exporting producer alone, merely found that the Commission had referred to that exporting producer by way of example as an alternative source of supply among others. That argument is therefore based on an erroneous reading of the order under appeal and must therefore be rejected on that basis.
55      As regards the appellant’s reference to alleged medium- or long-term supply contracts which bind its members to exporters subject to anti-dumping duties, the appellant merely reiterates an argument put forward before the General Court and which the latter dismissed, in paragraph 61 of the order under appeal, on the ground that the appellant had not established the existence of such contracts, which the latter does not dispute.
56      Accordingly, the appellant does not establish any error of law that the General Court made in ruling that the appellant did not have the required individual interest to seek the annulment of the contested regulation.
57      It follows from all of those considerations that the first ground of appeal must be rejected.
The second ground of appeal
Arguments of the parties
58      By its second ground of appeal, the appellant complaints that the General Court erred in law, in paragraphs 84 to 99 of the order under appeal, in interpreting the concept of ‘implementing measures’ set out in the final limb of the fourth paragraph of Article 263 TFEU and in the characterisation of the facts relating to that concept, and that it distorted the evidence which the appellant produced in support of its argument that the contested regulation did not entail implementing measures.
59      As regards the concept of ‘implementing measures’, the appellant claims that, by finding that the mere existence of a national authority responsible for controlling the application of a directly applicable EU act is tantamount to a need for implementing measures, the General Court unduly restricted the application of the condition, laid down in the final limb of the fourth paragraph of Article 263 TFEU, according to which the regulatory act at issue must not entail implementing measures. Such an interpretation would amount to accepting that any EU regulatory act which is directly applicable in the Member States entails implementing measures because a national authority responsible for controlling the application of that type of act always exists.
60      The appellant maintains that, in order to establish whether an EU regulatory act does not entail implementing measures, it must be determined whether it is necessary, for the authorities of the Member States, to adopt an act in order to confer legal effects to that regulatory act and contribute actively to its application and therefore its implementation. The mere fact that the national authority may decide to open inspection proceedings and/or reviews of that act once that act has been applied cannot be regarded as an implementing measure.
61      As regards the alleged erroneous characterisation of the facts and the distortion of the evidence, the appellant claims that the General Court did not take into account the fact that the contested regulation applies automatically in the legal order of the Member States and does not require any intervention by the customs authorities.
62      Under Article 79 of the Customs Code, the customs debt, as defined in Article 5, point 18, of that code, is to be incurred on import of the goods, through non-compliance with one of the obligations set out in the applicable customs legislation. The liability to pay that debt is therefore automatic either when a debtor submits his or her customs declaration or when the goods concerned are introduced into the customs territory of the European Union where the debtor failed to comply with all the customs formalities. The date on which the goods are introduced is also taken into account in the calculation of the three-year limitation period, laid down in Article 103 of the Customs Code, which applies to post-import controls and audits performed by the customs authorities. It follows from this, in the appellant’s view, that the contested regulation applies in the legal order of the Member States without the customs authorities having to adopt implementing measures. If it were necessary for those authorities to adopt such a measure, the liability to pay the customs debt would arise only at the moment at which it was adopted.
63      Furthermore, according to the appellant, Articles 101, 102 and 104 of the Customs Code cannot be read in isolation from the core principles of communication by electronic means, laid down in Article 6(1) and (4) of that code, and those governing the controls based on risk assessment methods performed by customs authorities, laid down in Article 46 of that code. Unless those authorities decide to carry out a control pursuant to Articles 46, 48 and 188 of that code, the amount of customs duties is determined and their payment is made by the importer himself or herself, without any involvement of the customs authorities, since declarations filled out by the importer are considered to be immediately accepted by those authorities pursuant to Article 172(1) of the Customs Code. Controls by the customs authorities are either random or carried out on the basis of a risk assessment which takes into consideration the fact that that amount is determined by the importer.
64      In the appellant’s view, although the judgment of 18 October 2018, Internacional de Productos Metálicos v Commission (C‑145/17 P, EU:C:2018:839, paragraph 52), requires the General Court to carry out its assessment by reference to the position of the person pleading the right to bring proceedings, the General Court did not take account of the fact that, in the present case, the customs authorities did not perform any action or carry out any control or send any specific notification of anti-dumping duties. Therefore, the General Court failed to examine the evidence submitted by the appellant in that respect.
65      The appellant claims, lastly, that the judgment of 10 December 2015, Kyocera Mita Europe v Commission (C‑553/14 P, EU:C:2015:805), is irrelevant in the present case since the provision on which that judgment is based has been replaced by the scheme under the Customs Code, a characteristic of which is the automatic acceptance of debtors’ declarations.
66      The Commission disputes the appellant’s arguments and contends that the second ground of appeal should be dismissed.
Findings of the Court
67      It must be borne in mind that the admissibility of an action brought by natural or legal persons against an act which is not addressed to them, in accordance with the fourth paragraph of Article 263 TFEU, is subject to the condition that they be accorded standing to bring proceedings, which arises in two situations. First, such proceedings may be instituted if the act is of direct and individual concern to those persons. Secondly, such persons may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them (judgment of 19 October 2023, Airoldi Metalli v Commission, C‑764/22 P, EU:C:2023:800, paragraph 40 and the case-law cited).
68      The expression ‘which … does not entail implementing measures’ within the meaning of the final limb of the fourth paragraph of Article 263 TFEU should be interpreted in the light of the objective of that provision which, as is clear from its origin, consists in preventing an individual from being obliged to infringe the law in order to have access to a court. Where a regulatory act directly affects the legal situation of a natural or legal person without requiring implementing measures, that person could be denied effective judicial protection if he or she did not have a legal remedy before the EU judicature for the purpose of challenging the legality of the regulatory act. In the absence of implementing measures, natural or legal persons, although directly concerned by the act in question, would be able to obtain a judicial review of that act only after having infringed its provisions, by pleading that those provisions are unlawful in proceedings initiated against them before the national courts (judgment of 19 October 2023, Airoldi Metalli v Commission, C‑764/22 P, EU:C:2023:800, paragraph 41 and the case-law cited).
69      By contrast, where a regulatory act entails implementing measures, judicial review of compliance with the EU legal order is ensured irrespective of whether those measures were adopted by the European Union or the Member States. Natural or legal persons who are unable, because of the conditions governing admissibility laid down in the fourth paragraph of Article 263 TFEU, to challenge a regulatory act of the European Union directly before the EU judicature are protected against the application to them of such an act by the ability to challenge the implementing measures which that act entails (judgment of 19 October 2023, Airoldi Metalli v Commission, C‑764/22 P, EU:C:2023:800, paragraph 42 and the case-law cited).
70      Where responsibility for the implementation of such acts lies with the institutions, bodies, offices or agencies of the European Union, natural or legal persons are entitled to bring a direct action before the EU judicature against the implementing acts under the conditions stated in the fourth paragraph of Article 263 TFEU, and to plead in support of that action, pursuant to Article 277 TFEU, the illegality of the basic act at issue. Where that implementation is a matter for the Member States, those persons may plead the invalidity of the basic act at issue before the national courts and tribunals and cause the latter to request a preliminary ruling from the Court of Justice, pursuant to Article 267 TFEU (judgment of 19 October 2023, Airoldi Metalli v Commission, C‑764/22 P, EU:C:2023:800, paragraph 43 and the case-law cited).
71      As the Court has held, whether a regulatory act entails implementing measures should be assessed by reference to the position of the person pleading the right to bring proceedings under the final limb of the fourth paragraph of Article 263 TFEU. It is therefore irrelevant whether the act in question entails implementing measures with regard to other persons (judgment of 19 October 2023, Airoldi Metalli v Commission, C‑764/22 P, EU:C:2023:800, paragraph 44 and the case-law cited).
72      In the present case, in paragraph 95 of the order under appeal, the General Court described the process for determining the anti-dumping duties payable by the importers, as provided for in the Customs Code. That process comprises the submission into the electronic customs system, which is the responsibility solely of the national customs authorities, of the customs declaration generating a decision accepting that declaration which takes the form of the allocation of a release code and which allows the goods concerned to be released for free circulation.
73      The General Court was right to set out in paragraph 90 of the order under appeal, first of all, that Article 101(1) of the Customs Code provides that the amount of import duties payable is determined by the customs authorities responsible for the place where the customs debt was incurred, without any exception for definitive anti-dumping duties being provided for in that regard. It subsequently stated that, pursuant to Article 104(1) of that code, the customs authorities referred to in Article 101 of that code are to enter in the accounts, in accordance with national legislation, the amount of import or export duties payable as determined in accordance with the latter provision. Lastly, it observed that Article 102 of the Customs Code provides, in paragraph 1 thereof, that the customs debt is to be notified to the debtor by the customs authorities in the form prescribed at the place where the customs debt is incurred, and states, in paragraph 2 thereof, that where the amount of duty payable is equal to the amount entered in the customs declaration, release of the goods by the customs authorities is equivalent to notifying the debtor of the customs debt.
74      The General Court was right to infer therefrom, in paragraphs 89 and 91 of the order under appeal, that regulations imposing definitive anti-dumping duties, such as the contested regulation, entail implementing measures within the meaning of the fourth paragraph of Article 263 TFEU.
75      The arguments put forward by the appellant are not such as to call into question that finding.
76      In the first place, the appellant’s argument that the General Court incorrectly found that the existence of an implementing measure, within the meaning of the fourth paragraph of Article 263 TFEU, is sufficiently established since the customs authorities are competent to carry out controls on declarations submitted by importers is based on an erroneous reading of the order under appeal.
77      In paragraph 95 of the order under appeal, the General Court held that the absence of control of the appellant’s goods was irrelevant. Moreover, as is apparent from paragraph 90 of the order under appeal, the General Court referred to Article 101(1) and Article 102(1) and (2) of the Customs Code, according to which the customs authorities responsible for the place where the customs debt is incurred, or is deemed to have been incurred in accordance with Article 87 of that code, determine the amount of import or export duties payable and notify debtors thereof. Those provisions apply even where those authorities do not carry out controls.
78      In the second place, the argument that Article 79 of the Customs Code, which determines when a customs debt is to be incurred through non-compliance with a customs obligation, demonstrates that the contested regulation does not require implementing measures cannot succeed. Even in the situations covered by that provision, the fact remains that, under Article 101(1) and Article 102 of that code, it is for the customs authorities responsible for the place where the customs debt is incurred, or is deemed to have been incurred under Article 87 of that code, to adopt implementing measures within the meaning of the fourth paragraph of Article 263 TFEU.
79      In the third place, the appellant criticises, in essence, the General Court for failing to have regard to the fact that, under Article 172(1) of the Customs Code, declarations made by debtors are immediately accepted by the customs authorities by means of an electronic system provided for in Article 6 of that code and that, under Articles 46, 48 and 188 thereof, the controls may be carried out after those declarations have been accepted.
80      It is apparent from Article 194(1) of the Customs Code that the customs authorities are to release the goods as soon as the particulars in the customs declaration have been verified or accepted without verification.
81      Accordingly, even where the debtor’s declaration is accepted immediately by the customs authorities, those authorities are still required to take an implementing measure within the meaning of the fourth paragraph of Article 263 TFEU, which, under Article 102(2) of that code, is equivalent to a decision notifying the debtor of the customs debt. The fact that, under Article 48 of that code, the customs authorities are not required to verify, after the release of the goods, the accuracy and completeness of the information provided in the customs declaration and that, under Article 6 of that code, an electronic system generates a decision of the customs authorities accepting that declaration, taking the form of the allocation of a release code, does not prevent that decision from being an implementing measure within the meaning of the fourth paragraph of Article 263 TFEU.
82      As the General Court correctly noted in paragraph 90 of the order under appeal, the Customs Code provides for measures vis-à-vis importers liable to pay anti-dumping duties consisting in the notification to those importers of the customs debt to which those duties give rise. The contested regulation therefore entails implementing measures, the invalidity of which may be raised before the national courts and lead the latter to request a preliminary ruling from the Court of Justice on the basis of Article 267 TFEU. Thus, contrary to what the appellant claims, the General Court did not err in law in interpreting the final limb of the fourth paragraph of Article 263 TFEU.
83      In the fourth and last place, as regards the appellant’s arguments that the General Court distorted the evidence provided by the appellant, it should be borne in mind that, under Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, an appeal is limited to points of law. The General Court alone has jurisdiction to establish and assess the relevant facts and to evaluate the evidence. The assessment of those facts and evidence does not therefore constitute, save in the case of their distortion, a question of law subject, as such, to review by the Court of Justice in the context of an appeal (judgment of 28 September 2023, Changmao Biochemical Engineering v Commission, C‑123/21 P, EU:C:2023:708, paragraph 121 and the case-law cited). Furthermore, it follows from well-established case-law that, where an appellant alleges such a distortion of the evidence by the General Court, that appellant must, under Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure, indicate precisely the evidence alleged to have been distorted by the General Court and show the errors of appraisal which, in its view, led to such distortion. In addition, it is also settled case-law that the distortion must be obvious from the documents in the case file without there being any need to carry out a new assessment of the facts and the evidence (judgments of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 86 and the case-law cited).
84      In the present case, although the appellant relied on a distortion of the facts by the General Court, it has not indicated, in its appeal, either the facts which the General Court allegedly distorted or how exactly it distorted those facts. As noted by the Commission, the appellant has not produced specific evidence of how its imports of the product concerned made by its members were treated in that case by the customs authorities. It merely relied on an interpretation of the applicable customs rules, which was correctly rejected by the General Court.
85      As regards the examination of the relevant provisions of the Customs Code, the appellant, first, does not in any way dispute the presentation of the content of those provisions by the General Court, but merely calls into question the General Court’s interpretation of them. Secondly, the appellant does not state in what way that interpretation by the General Court is manifestly erroneous.
86      It follows from all of the foregoing considerations that the second ground of appeal must be rejected.
The third ground of appeal
Arguments of the parties
87      By the third ground of appeal, formally alleging an incorrect characterisation of the facts and a distortion of the evidence, the appellant claims that the General Court, in paragraphs 101 to 110 of the order under appeal, made an error of law in considering that its appeal at first instance was inadmissible for the purposes of protecting its own interests.
88      According to the appellant, the General Court did not fully assess the appellant’s role as negotiator. The latter is a European association whose mission is to represent the commercial interests of its members at European level, which it did through its participation in the anti-dumping proceeding before the Commission. In that regard, the General Court incorrectly held that it had not proven that role. The choice of an appellant’s member to participate in the proceeding fully confirms that the latter protects the collective interests of its members.
89      The Commission disputes the appellant’s line of argument and contends that the third ground of appeal should be rejected.
Findings of the Court
90      In the present case, it must be stated that, although alleging an erroneous characterisation of the facts and a distortion of the evidence by the General Court, the appellant does not identify, in its appeal, either the facts concerned or the evidence which were allegedly distorted by that court in paragraphs 101 to 110 of the order under appeal. In the light of the case‑law cited in paragraph 83 above, such arguments are inadmissible.
91      Furthermore, the appellant, in essence, merely repeats arguments already submitted to the General Court and which the latter rejected. In that regard, it is sufficient to recall that, in accordance with the case-law cited in paragraph 52 of the present judgment, a ground of appeal which amounts in reality to a request for re-examination of an argument submitted to the General Court falls outside the competence of the Court of Justice.
92      In any event, the General Court did not make any error of law in ruling, in paragraph 108 of the order under appeal, that the role assumed by the appellant as an association representative of its members, which was content to put forward the point of view of its members, is in no way comparable to the exceptional situation of negotiator in question in the case giving rise to the judgment of 24 March 1993, CIRFS and Others v Commission (C‑313/90, EU:C:1993:111, paragraphs 28 to 30).
93      It follows from the foregoing that the third ground of appeal must be rejected as inadmissible and, in any event, unfounded.
94      The appeal must therefore be dismissed in its entirety.
Costs
95      Under Article 184(2) of the Rules of Procedure, where the appeal is unfounded, the Court is to make a decision as to the costs.
96      Under Article 138(1) of those rules, applicable to proceedings on appeal by virtue of Article 184(1) thereof, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
97      In the present case, since Euranimi has been unsuccessful, it must be ordered, in addition to bearing its own costs, to pay the costs incurred by the Commission, in accordance with the form of order sought by the Commission.
On those grounds, the Court (Seventh Chamber) hereby:
1.      Dismisses the appeal;
2.      Orders European Association of Non-Integrated Metal Importers & distributors (Euranimi) to bear its own costs and pay those incurred by the European Commission.
Biltgen
Passer
Arastey Sahún
Delivered in open court in Luxembourg on 29 February 2024.
A. Calot Escobar
F. Biltgen
Registrar
President of the Chamber
*      Language of the case: English.