Case T‑364/16

ArcelorMittal Tubular Products Ostrava a.s. and Others

v

European Commission

(Dumping — Imports of certain seamless pipes and tubes of iron or steel originating in China — Modification of the TARIC additional code for a company — Action for annulment — Challengeable act — Whether directly concerned — Individual concern — Admissibility — Effect of a judgment annulling a decision — Rule of equivalence of form)

Summary — Judgment of the General Court (Seventh Chamber), 18 October 2018

Action for annulment — Admissibility criteria — Natural or legal persons — Action brought by several applicants against the same decision — Capacity to act of one of them — Admissibility of the action as a whole

Action for annulment — Judgment annulling a measure — Effects — Obligation to implement — Scope — Both the operative part and the grounds of the judgment to be taken into account — Retroactive effect of annulment — Obligation to ensure that the annulled measure is not replaced by a measure affected by the same irregularity

Only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicants are acts or decisions which may be the subject of an action for annulment, under Article 263 TFEU. Furthermore, an act which is neither capable of producing, nor intended to produce, any legal effects cannot be the subject of an action for annulment. In order to ascertain whether or not a measure which has been challenged produces such effects it is necessary to look to its substance. It follows that the Commission decision to take a company out of the list of companies listed under TARIC additional code A 950 and to list it under TARIC additional code C 129 produced definitive legal effects, brought into being by the national customs authorities as from the date of the creation of TARIC additional code C 129, its objective being that those authorities should no longer collect anti-dumping duties with respect to goods produced by that company, as set by Implementing Regulation 2015/2272, although that regulation has not been annulled or declared invalid by the Courts of the European Union. The legal effects of that decision are such as to affect the interests of the undertakings which prompted the anti-dumping investigation. (see paras 22, 23, 32, 34)

See the text of the judgment. (see paras 33, 61, 64-66)

In order to satisfy the requirement that the decision forming the subject matter of the proceedings must be of direct concern to a natural or legal person, as laid down in the fourth paragraph of Article 263 TFEU, two cumulative criteria must be met, namely, first, the contested measure must directly affect the legal situation of the individual and, second, 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 without the application of other intermediate rules. As regards the first condition, whether the legal situation of the particular litigant is directly affected, in that the effect of the contested decision is that the anti-dumping duties laid down by Implementing Regulation 2015/2272 are no longer collected on imports of the goods produced by a company, although the objective of the request for review made on behalf of the applicants was, on the contrary, the imposition of such duties, the decision modifying the additional TARIC code is of direct concern to the applicants, who compete with that company. As regards the second condition, whether the persons to whom that decision is addressed have any discretion, the Member States must, as a general rule, apply the measures represented by the TARIC codes and additional codes, in order to achieve a uniform implementation of the Common Customs Tariff. It is therefore clear that the national customs authorities had no discretion in this case. (see paras 38, 40, 43, 44)

Persons other than those to whom a decision is addressed may claim to be individually concerned, within the meaning of the fourth paragraph of Article 263 TFEU, only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of those factors, distinguishes them individually just as in the case of the person addressed by such a decision. The contested decision, the effect of which was that the anti-dumping duties laid down by Implementing Regulation 2015/2272 were no longer collected on goods produced by a company, is of individual concern to the applicants, who, as Union producers, were sampled and at whose premises verification visits were carried out within the review procedure, that procedure having been initiated on their behalf and in the light of the objections they had put forward, culminating in their specific situation being taken into account. (see paras 46, 50)

See the text of the judgment. (see para. 47)

In accordance with Article 11(2) of Regulation No 1225/2009, a definitive anti-dumping measure is to expire five years from its imposition or five years from the date of the conclusion of the most recent review which has covered both dumping and injury, unless it is determined in a review that the expiry would be likely to lead to a continuation or recurrence of dumping and injury. In that context, the Commission may either maintain measures that are in force or allow them to expire. The subject of that provision is therefore not the imposition, for the first time, of anti-dumping measures, but the maintenance, if appropriate, of anti-dumping measures that are in force and that are coming normally to the point of expiry. (see para. 62)