62015CO0264_EN
Parties
Grounds
Operative part
Parties
In Joined Cases C‑264/15 P and C‑265/15 P,
Two APPEALS under Article 56 of the Statute of the Court of Justice of the European Union, brought on 2 June 2015,
Makro autoservicio mayorista SA,
established in Madrid (Spain) (C‑264/15 P),
Vestel Iberia SL, established in Madrid (C‑265/15 P),
represented by P. De Baere, avocat, and P. Muñiz, advogado,
appellants,
the other parties to the proceedings being:
European Commission,
represented by R. Lyal and A. Caeiros, acting as Agents,
defendant at first instance,
Kingdom of Spain,
represented by A. Rubio González, acting as Agent,
intervener at first instance,
THE COURT (Ninth Chamber),
composed of C. Lycourgos, President of the Chamber, E. Juhász and C. Vajda (Rapporteur), Judges,
Advocate General: N. Wahl,
Registrar: A. Calot Escobar,
having regard to the decision taken, after hearing the Advocate General, to give a decision on the action by reasoned order, pursuant to Article 181 of the Rules of Procedure of the Court,
makes the following
Grounds
Order
1. By their appeals, Makro autoservicio mayorista SA and Vestel Iberia SL ask the Court to set aside the judgment of the General Court of the European Union of 12 March 2015 in Vestel Iberia and Makro autoservicio mayorista
v Commission
(T‑249/12 and T‑269/12, EU:T:2015:150, ‘the judgment under appeal’), whereby the General Court dismissed as inadmissible their actions for annulment of Commission Decision C(2010) 22 final of 18 January 2010 (Case REM 02/08) (‘the decision at issue’) finding that post-clearance entry in the accounts of import duties is justified and that remission of those duties is not justified in a particular case.
Legal context
The Customs Code
2. Article 220(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 (OJ 1999 L 311, p. 17; ‘the Customs Code’), states:
‘…, subsequent entry in the accounts shall not occur where:
…
(b) the amount of duty legally owed failed to be entered in the accounts as a result of an error on the part of the customs authorities which could not reasonably have been detected by the person liable for payment, the latter for his part having acted in good faith and complied with all the provisions laid down by the legislation in force as regards the customs declaration;
…’
3. Article 239 of the Customs Code provides:
‘1. Import duties … may be repaid or remitted in situations …:
– to be determined in accordance with the procedure of the committee;
– resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned. The situations in which this provision may be applied and the procedures to be followed to that end shall be defined in accordance with the Committee procedure. Repayment or remission may be made subject to special conditions.
2. Duties shall be repaid or remitted for the reasons set out in paragraph 1 upon submission of an application to the appropriate customs office within 12 months from the date on which the amount of the duties was communicated to the debtor.
…’
The Implementing Regulation
4. The provisions governing the application of the Customs Code were themselves codified in Commission Regulation (EEC) No 2454/93 of 2 July 1993 (OJ 1993 L 253, p. 1), as amended by Commission Regulation (EC) No 1335/2003 of 25 July 2003 (OJ 2003 L 187, p. 16; ‘the Implementing Regulation’).
The provisions governing the application of Article 220(2)(b) of the Customs Code
5. Title III, Part IV, relating to customs debt, of the Implementing Regulation is entitled ‘Recovery of the amount of the customs debt’ and contains a number of articles relating to the application of Article 220(2)(b) of the Customs Code.
6. Thus, Article 869 of the Implementing Regulation is worded as follows:
‘The customs authorities shall themselves decide not to enter uncollected duties in the accounts:
…
(b) in cases in which they consider that the conditions laid down in Article 220(2)(b) of the [Customs] Code are fulfilled, except those in which the dossier must be transmitted to the Commission pursuant to Article 871. However, where Article 871(2), second indent, is applicable, the customs authorities may not adopt a decision waiving entry in the accounts of the duties in question until the end of a procedure initiated in accordance with Articles 871 to 876.
…’
7. Article 871 of the Implementing Regulation sets out the cases in which the national authorities, when reaching a decision on an application for remission or repayment under Article 220(2)(b) and Article 236 of the Customs Code, are required to refer the matter to the Commission. That article provides:
‘1. The customs authority shall transmit the case to the Commission to be settled under the procedure laid down in Articles 872 to 876 where it considers that the conditions laid down in Article 220(2)(b) of the [Customs] Code are fulfilled and:
– it considers that the Commission has committed an error within the meaning of Article 220(2)(b) of the [Customs] Code,
– the circumstances of the case are related to the findings of a Community investigation carried out under Council Regulation (EC) No 515/97 of 13 March 1997 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters or under any other Community legislation or any agreement concluded by the Community with a country or group of countries in which provision is made for carrying out such Community investigations, or
– the amount not collected from the operator concerned in respect of one or more import … operations but in consequence of a single error is EUR 500 000 or more.
2. However, the cases referred to in paragraph 1 shall not be transmitted where:
– the Commission has already adopted a decision under the procedure provided for in Articles 872 to 876 on a case involving comparable issues of fact and of law,
– the Commission is already considering a case involving comparable issues of fact and of law.
…
6. Where one of the following situations occurs the Commission shall return the dossier to the customs authority and the procedure referred to in Articles 872 to 876 shall be deemed never to have been initiated:
…
– under paragraphs 1 and 2, the dossier should not be transmitted;
…’
8. The second paragraph of Article 874 of the Implementing Regulation provides that:
‘The Commission shall notify the Member States of the decisions it has adopted in order to help customs authorities to reach decisions in situations involving comparable issues of fact and law.’
The provisions governing the application of Article 239 of the Customs Code
9. Chapter 3 of Title IV, on the repayment or remission of import or export duties, of Part IV of the Implementing Regulation is entitled ‘Specific provisions relating to the application of Article 239 of the Code’. It includes a Section 1, on the decisions to be taken by the customs authorities of the Member States, and a Section 2, on the decisions to be taken by the Commission.
– The decisions to be taken by the authorities of the Member States, referred to in Articles 899 to 904a of the Implementing Regulation
10. Article 899(2) of the Implementing Regulation is worded as follows:
‘In [cases other than those referred to in Articles 900 to 904], except those in which the dossier must be submitted to the Commission pursuant to Article 905, the decision-making customs authority shall itself decide to grant repayment or remission of the import … duties where there is a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned.
Where Article 905(2), second indent, is applicable, the customs authorities may not decide to authorise repayment or remission of the duties in question until the end of a procedure initiated in accordance with Articles 906 to 909.’
– The decisions to be taken by the Commission, referred to in Articles 905 to 909 of the Implementing Regulation
11. Article 905 of the Implementing Regulation provides:
‘1. Where the application for repayment or remission submitted under Article 239(2) of the [Customs] Code is supported by evidence which might constitute a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned, the Member State to which the decision-making customs authority belongs shall transmit the case to the Commission to be settled under the procedure laid down in Articles 906 to 909 where:
– the authority considers that a special situation is the result of the Commission failing in its obligations,
– the circumstances of the case are related to the findings of a Community investigation carried out under Regulation (EC) No 515/97, or under any other Community legislation or any agreement concluded by the Community with countries or groups of countries in which provision is made for carrying out such Community investigations, or
– the amount for which the person concerned may be liable in respect of one or more import … operations but in consequence of a single special situation is EUR 500 000 or more.
The term “the person concerned” shall be interpreted in the same way as in Article 899.
2. However, the cases referred to in paragraph 1 shall not be transmitted where:
– the Commission has already adopted a decision under the procedure provided for in Articles 906 to 909 on a case involving comparable issues of fact and of law,
– the Commission is already considering a case involving comparable issues of fact and of law.
3. The case sent to the Commission shall include all the facts necessary for a full examination of the case presented. It shall include detailed information on the behaviour of the operator concerned, and in particular on his professional experience, good faith and diligence. This assessment shall be accompanied by all information that may demonstrate that the operator acted in good faith. The dossier shall also include a statement, signed by the applicant for repayment or remission, certifying that he has read the dossier and either stating that he has nothing to add or listing all the additional information that he considers should be included.
…
6. Where one of the following situations occurs the Commission shall return the dossier to the customs authority and the procedure referred to in Articles 906 to 909 shall be deemed never to have been initiated:
…
– under paragraphs 1 and 2, the dossier should not be transmitted;
…’
12. Article 908(1) of the Implementing Regulation provides:
‘The Member State concerned shall be notified of the decision referred to in Article 907 as soon as possible and in any event within one month of the expiry of the period specified in that Article.
The Commission shall notify the Member States of the decisions it has adopted in order to help customs authorities to reach decisions on cases involving comparable issues of fact and law.’
Background to the disputes
13. For the purpose of the present appeals, the background to the disputes, as derived from paragraphs 13 to 36 of the judgment under appeal, can be summarised as follows.
The appellants
14. The applicant in Case T‑249/12, Vestel Iberia SL, is a Spanish company, whose main activity is importing, distributing, manufacturing and providing after-sales services for electronic devices intended for the general public, including white and brown goods.
15. The applicant in Case T‑269/12, Makro autoservicio mayorista SA, is also a Spanish company, whose main activity is importing and distributing food and non-food products, such as electronic devices.
The assessment procedures initiated by the Spanish customs authorities and applications for remission of import duties submitted by the appellants
16. In May 2002, the Spanish customs authorities undertook a post-clearance verification of the imports of colour television sets by the appellants. In April and May 2004, the Spanish authorities gave a preliminary assessment in which they took the view that the colour television sets imported by the appellants were of Chinese origin and proposed applying the anti-dumping duties provided for by Council Regulation (EC) No 2584/98 of 27 November 1998 amending Regulation (EC) No 710/95 imposing a definitive anti-dumping duty on imports of colour television receivers originating in Malaysia, the People’s Republic of China, the Republic of Korea, Singapore and Thailand and collecting definitively the provisional duty imposed (OJ 1998 L 324, p. 1).
17. On 17 May and 23 June 2004, the Spanish customs authorities notified the appellants of a customs debt in respect of their imports of colour television sets from Turkey in 2000 and 2001.
18. By letters of 19 May 2005, the appellants each sent the Spanish customs authorities an application for remission of their customs debt pursuant to Article 239 of the Customs Code.
19. In early 2007, the Spanish customs authorities informed the appellants that they were forwarding their applications for the remission of import duties to the Commission pursuant to Article 905(3) of the Implementing Regulation.
20. By letters of 8 July 2008, the Commission informed the appellants that their applications for the remission of import duties would be returned to the Spanish customs authorities on the basis of Article 905(2), second indent, and (6) of the Implementing Regulation, on the ground that it was already examining the application submitted by Schneider España de Informática SA (‘Schneider’), registered under the reference REM 02/08, whose case-file was comparable in terms of fact and of law. It also informed the Spanish authorities that, under Article 899(2) of the Implementing Regulation, they were required, before reaching a decision on the applications for the remission of import duties submitted by the appellants, to wait until the Commission had adopted a decision in Case REM 02/08.
The decision at issue
21. On 18 January 2010, the Commission adopted the decision at issue finding that post-clearance entry in the accounts of import duties is justified and that remission of those duties is not justified in a particular case.
22. In the decision at issue, first, the Commission took the view that the customs authorities had not made any error within the meaning of Article 220(2)(b) of the Customs Code and that Schneider had not proved that it acted diligently, as required by that provision. Secondly, the Commission considered that there was no special situation within the meaning of Article 239 of the Customs Code.
23. By application lodged with the Court Registry on 6 April 2010 (Case T‑153/10), Schneider sought annulment of the decision at issue.
24. By order of 28 February 2012 in Schneider España de Informática
v Commission
(T‑153/10, EU:T:2012:94), the General Court found that there was no longer any need to adjudicate on the action.
The decisions adopted by the Spanish customs authorities with regard to the appellants
25. In April 2012, the Spanish customs authorities notified the appellants of their decision rejecting the application for the remission of import duties submitted by each of them. In order to reject that application, the Spanish authorities relied on the decision at issue.
The procedure before the General Court and the judgment under appeal
26. By applications registered at the Registry of the General Court on 5 and 18 June 2012, the appellants brought an action for annulment of the decision at issue.
27. By separate documents lodged at the Registry of the General Court on 4 and 26 September 2012, the Commission raised a plea of inadmissibility pursuant to Article 114(1) of the Rules of Procedure of the General Court.
28. The Kingdom of Spain was granted leave to intervene in support of the appellants.
29. By order of the President of the Sixth Chamber of the General Court of 8 October 2014, after hearing the parties, Cases T‑249/12 and T‑269/12 were joined for the purposes of the oral procedure pursuant to Article 50 of the Rules of Procedure of the General Court.
30. By the judgment under appeal, the General Court held that the appellants are not directly affected by the decision at issue and, consequently, dismissed the actions as inadmissible.
Forms of order sought by the parties before the Court of Justice
31. By decision of the President of the Court of 29 July 2015, Cases C‑264/15 P and C‑265/15 P were joined for the purposes of the written and oral part of the procedure and the judgment.
32. The appellants claim that the Court should:
– set aside the judgment under appeal;
– declare the actions admissible;
– return the cases to the General Court for a ruling on the substance of the actions; and
– order the Commission to pay the costs.
33. The Commission contends that the Court should:
– dismiss the appeals; and
– order the appellants to pay the costs.
The appeals
34. Under Article 181 of the Rules of Procedure of the Court of Justice, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the Court may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the Advocate General, decide by reasoned order to dismiss the appeal in whole or in part without opening the oral procedure.
35. That provision should be applied in the present cases.
The first ground of appeal
Arguments of the parties
36. By their first ground of appeal, the appellants submit that the General Court erred in law when it held that the Spanish authorities had a margin of discretion in the implementation of the decision at issue with regard to them. This ground of appeal is divided into two branches.
37. By the first branch of the first ground of appeal, the appellants complain that the General Court did not correctly interpret, in paragraph 77 of the judgment under appeal, paragraphs 64 and 65 of the judgment in Heuschen & Schrouff Oriëntal Foods Trading
(C‑375/07, EU:C:2008:645).
38. By the second branch of the first ground of appeal, the appellants submit that the General Court’s interpretation and application of the provisions of the Implementing Regulation were incorrect. The appellants state that, according to those provisions, the national authorities are lacking any discretion in the implementation of the decision at issue with regard to them.
39. According to the appellants, Articles 869(b), 871(2), the second paragraph of Article 874, Articles 899(2), 905(2) and 908(1) of the Implementing Regulation codify the principle of the primacy of EU law. Those articles ensure that the Commission’s assessment of EU law and of the facts in the decision at issue is applied in a uniform manner in all of the European Union to all other economic operators who are in a comparable factual and legal situation. Consequently, neither the national authorities nor the national courts can adopt measures which are incompatible with the decision at issue.
40. The appellants submit that that finding is confirmed by paragraphs 61 and 62 of the judgment in Heuschen & Schrouff Oriëntal Foods Trading
(C‑375/07, EU:C:2008:645).
41. In addition, the appellants contend that, in accordance with Article 871(1) of the Implementing Regulation, their dossier falls within the exclusive competence of the Commission. That exclusive competence would be ended if the national authorities were able to adopt a decision different from that which the Commission has already taken.
42. The Kingdom of Spain contends that, pursuant to Article 905(1) and (2) of the Implementing Regulation, in the case of a remission of import duties, the national authorities do not have any margin of discretion enabling them to depart from the Commission’s position. The only ‘margin’ available to those authorities is the power to choose to send a new dossier to the Commission for decision.
43. In addition, the Kingdom of Spain submits that Article 908 of the Implementing Regulation expressly provides that decisions granting the repayment or remission of import duties are to have effect in cases involving comparable issues of fact and of law.
44. The Commission disputes the appellants’ arguments.
Findings of the Court
45. It should be recalled at the outset that the condition that a natural or legal person must be directly concerned by the decision being challenged, as provided for in the fourth paragraph of Article 263 TFEU, requires two conditions to be satisfied, namely (i) the contested measure must directly affect the legal situation of the individual and (ii) it must leave no discretion to its addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules alone without the application of other intermediate rules (see, to that effect, order in Northern Ireland Department of Agriculture and Rural Development
v Commission, C‑248/12 P, EU:C:2014:137, paragraph 21 and the case-law cited).
46. Concerning the second branch of the first ground of appeal, it should be borne in mind that, in accordance with the case-law cited in the preceding paragraph, the appellants can be considered to be directly affected by the decision at issue only if that decision, even on the assumption that it directly affects their legal situation, leaves no discretion to the Spanish authorities for the purpose of its implementation in their regard.
47. Contrary to the appellants’ submission, Articles 869(b), 871(2), the second paragraph of Article 874, Articles 899(2), 905(2) and 908(1) of the Implementing Regulation do not preclude any measure of discretion enjoyed by the Spanish authorities. As is apparent from paragraphs 78, 79 and 81 of the judgment under appeal, the only obligation incumbent on those authorities, pursuant to those provisions, was to await the outcome of the proceedings concerning the application for remission submitted by Schneider, so as to be able to take into account the decision adopted by the Commission when they decided on the applications submitted by the appellants.
48. However, that obligation does not preclude an assessment by the Spanish authorities. It was for them to judge the degree of similarity between the application submitted by Schneider and the applications submitted by the appellants. In that context, the Spanish authorities had, in particular, to take into account any particularity, of fact or of law, that characterises the specific situation of the appellants, as the General Court noted in paragraph 80 of the judgment under appeal. As the Commission maintains in its observations, those authorities could, in such a case, arrive at the conclusion that the specific situation of the appellants was sufficiently dissimilar from that of Schneider to justify a different outcome. In that regard, it is important to note that the fact that the Commission sent the appellants’ dossier back to the Spanish authorities, on the ground that it had already examined the application submitted by Schneider whose dossier was comparable in terms of fact and of law, does not mean that their situation is so similar to that of Schneider that the result at the end of the assessment of their applications must necessarily be the same.
49. The finding that the national authorities exercise discretion in a case such as that in the present case is confirmed by the second paragraph of Article 874 and Article 908(1) of the Implementing Regulation which oblige the Commission to notify the Member States of the decisions it has adopted ‘in order to help customs authorities to reach decisions’ in such cases.
50. In addition, contrary to what the appellants assert, it is not apparent from paragraphs 61 and 62 of the judgment in Heuschen & Schrouff Oriëntal Foods Trading
(C‑375/07, EU:C:2008:645) that the Court interpreted the provisions of the Implementing Regulation in such a way as to deprive the authorities or the national courts of any measure of discretion in a case such as that in the present case.
51. It follows from the foregoing that the second part of the first ground of appeal must be dismissed as being manifestly unfounded.
52. Concerning the first part of the first ground of appeal, it must be pointed out that, in accordance with settled case-law, where one of the grounds adopted by the General Court is sufficient to sustain the operative part of its judgment, any defects that might vitiate other grounds given in the judgment concerned in any event have no bearing on that operative part and, accordingly, a plea relying on such defects is ineffective and must be dismissed (see, inter alia, judgments in Commission
v CAS Succhi di Frutta, C‑496/99 P, EU:C:2004:236, paragraph 68, and United Kingdom
v Commission, C‑416/11 P, EU:C:2012:761, paragraph 45).
53. It follows from paragraphs 46 to 51 of the present order that the General Court was right to find, in the judgment under app eal, that the decision at issue did not directly affect the appellants’ legal situation, and that finding has not been properly called into question by the appellants.
54. Accordingly, any error of law made by the General Court in the interpretation of paragraphs 64 and 65 of the judgment in Heuschen & Schrouff Oriëntal Foods Trading
(C‑375/07, EU:C:2008:645) would, in any event, have had no effect on the outcome of the actions at first instance and thus would have had no bearing on the operative part of the judgment under appeal.
55. Consequently, the first part of the first ground of appeal must be rejected and, accordingly, that ground of appeal must be rejected in its entirety as manifestly unfounded.
The second ground of appeal
Arguments of the parties
56. By their second ground of appeal, the appellants argue that, even if the Spanish authorities had discretion in the implementation of the decision at issue, the General Court erred in law because the mere existence of discretion is insufficient to prevent that decision from being of direct concern to the appellants. That ground of appeal is divided into two parts.
57. By the first part of the second ground of appeal, the appellants claim that it is apparent from the judgment in Land Oberösterreich
v Commission
(T‑366/03 and T‑235/04, EU:T:2005:347, paragraph 29) that, if the addressee of a Commission decision does not exercise any discretion when it implements and notifies that decision to a third party, that party is directly concerned by that decision. According to the appellants, the General Court erred in law because it failed to consider that legal principle or erred in its application.
58. By the second part of the second ground of appeal, the appellants assert that, even if the Spanish authorities had discretion, such discretion was purely theoretical. According to the appellants, it is clear from the case-law of the Court that, when the possibility for addresses not to give effect to the measure of EU law is purely theoretical, such measure is of direct concern to that third party (judgments in Piraiki-Patraiki and Others
v Commission, 11/82, EU:C:1985:18, paragraphs 8 to 10, and Dreyfus
v Commission, C‑386/96 P, EU:C:1998:193, paragraph 44). The appellants submit that the General Court erred in law because it failed to consider that legal principle or erred in its application.
59. According to the Kingdom of Spain, it is apparent from Article 905(2) and (6) of the Implementing Regulation that the Spanish authorities do not have any margin of discretion enabling them to move away from the Commission’s position. The only margin available to those authorities is the power to choose to send a new dossier to the Commission for decision.
60. The Kingdom of Spain recalls in this context that the Commission services expressly stated, after a concrete and individual examination, that the situation of the appellants and that of Schneider had characteristics which presented comparable issues of fact and of law.
61. The Commission disputes the appellants’ arguments.
Findings of the Court
62. So far as concerns the first part of the second ground of appeal, it should be borne in mind that it is apparent from the case-law cited in paragraph 45 of the present order that the condition that a natural or legal person must be directly concerned by the decision being challenged, as provided for in the fourth paragraph of Article 263 TFEU, requires two conditions to be satisfied. The second of those conditions requires that the contested measure does not leave any discretion to its addressees who are entrusted with the task of implementing it. Contrary to the appellants’ submission, the failure to exercise discretion is not therefore a relevant criterion for determining whether a natural or legal person is directly concerned by such a measure, as provided for in the fourth paragraph of Article 263 TFEU.
63. In addition, as the Commission notes in its observations, the judgment in Land Oberösterreich
v Commission (T‑366/03 and T‑235/04, EU:T:2005:347) concerned a situation in which the addressee of the decision, the Republic of Austria, did not have any discretion, since its role was limited to communicating the Commission’s decision to the region concerned. That is how the words ‘did not exercise any discretion’, found in paragraph 29 of that judgment, must be construed. That judgment is not therefore capable of supporting the appellants’ assertions.
64. It follows from the foregoing that the first part of the second ground of appeal must be dismissed as being manifestly unfounded.
65. So far as concerns the second part of the second ground of appeal, it should be borne in mind that the Court has consistently held that a submission made for the first time in an appeal before the Court must be rejected as inadmissible. In an appeal, the Court’s jurisdiction is confined to a review of the assessment by the General Court of the pleas argued before it. To allow a party to put forward, in an appeal, a plea 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 scope than the one heard by the General Court.
66. It must be stated, however, that the appellants did not claim before the General Court that, even if the Spanish authorities had discretion, such discretion was purely theoretical. Consequently, the second part of the second ground of appeal must be rejected as manifestly inadmissible.
67. The second ground of appeal must therefore be rejected in its entirety as being, in part, manifestly unfounded and, in part, manifestly inadmissible.
The third ground of appeal
Arguments of the parties
68. According to the appellants, the General Court erred, in paragraph 86 of the judgment under appeal, in the legal characterisation of the evidence, or distorted the evidence. The appellants consider that the General Court incorrectly described the decision of the Spanish authorities rejecting their application for the remission of import duties. According to them, the Spanish authorities did not ‘take care’ in establishing that the conclusions contained in the contested decision applied equally to the appellants. In actual fact, their decision represents only a ‘notification’ or a ‘mere reproduction’ of the decision at issue.
69. The Kingdom of Spain states that it has nothing to add to what is set out in the appellants’ appeals.
70. The Commission disputes the appellants’ arguments.
Findings of the Court
71. The arguments put forward by the appellants in support of the third ground of appeal cannot succeed.
72. That ground of appeal is ineffective. Even if it were correct to consider, like the appellants, that the General Court erred, in paragraph 86 of the judgment under appeal, in its description of the actions of the Spanish authorities, that would not mean that those authorities did not have a discretion, which constitutes the relevant criterion. As is apparent from paragraphs 48 and 49 of the present order, the Spanish authorities had a discretion.
73. The third ground of appeal must therefore be dismissed.
74. In the light of all the foregoing observations, the appeal must be dismissed in its entirety.
Costs
75. Under Article 138(1) of the Rules of Procedure of the Court of Justice, which applies to appeal proceedings by virtue of Article 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the appellants have been unsuccessful, they must be ordered to pay the costs, as applied for by the Commission.
76. In accordance with Article 140(1) of the Rules of Procedure, which also applies to appeal proceedings by virtue of Article 184(1) of those rules, the Member States which have intervened in the proceedings are to bear their own costs. The Kingdom of Spain must be ordered to bear its own costs.
Operative part
On those grounds, the Court (Ninth Chamber) hereby orders:
1. The appeal is dismissed.
2. Makro autoservicio mayorista SA and Vestel Iberia SL shall pay the costs.
3. The Kingdom of Spain shall bear its own costs.