Case T‑289/16

Inox Mare Srl

v

European Commission

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

Summary — Order of the General Court (Seventh Chamber), 21 June 2017

1. Actions for annulment — Actionable measures — Concept — Measures producing binding legal effects — Final report of the European Anti-Fraud Office (OLAF) concerning an external investigation and recommendation of the Director General of OLAF as to the action to be taken by the national authorities — Not included — Forwarding to those authorities of information gathered in the context of the said investigation — Not included

(Art. 263 TFEU; European Parliament and Council Regulation No 883/2013, thirty-first recital and Arts 11 and 12)

2. European Anti-Fraud Office (OLAF) — Investigations — Final report and recommendations — Not binding on the addressee national authorities — Discretion of the national authorities as to the action to be taken — Obligation to ensure, at national level, judicial protection in the event of proceedings

(Art. 267 TFEU; European Parliament and Council Regulation No 883/2013, Art. 11(1))

3. EU law — Interpretation — Texts in several languages — Uniform interpretation — Differences between the various language versions — Account to be taken of the general scheme and purpose of the legislation

4. Own resources of the European Union — Repayment or remission of import duties — Application of substantive customs law — Exclusive competence of the national authorities

(Art. 267 TFEU; European Parliament and Council Regulation No 952/2013)

5. Customs union — Customs clearance procedures — Status of authorised economic operator — Conditions for granting — No infringements of customs or tax legislation — Assessment in the case of an operator having been the subject of a report of the European Anti-Fraud Office (OLAF)

(European Parliament and Council Regulation No 952/2013, Arts 38 and 39; Commission Regulation No 2447/2015, Arts 24(2), and 29(4))

6. Actions for annulment — Natural or legal persons — Possible lack of legal remedies — No impact on the system of legal remedies and on the conditions of admissibility regarding actions for annulment

(Arts 263 TFEU and 267 TFEU)

1. Only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicant by bringing about a distinct change in his legal position are acts or decisions which may be the subject of an action for annulment.

In the case of acts of the European Anti-Fraud Office (OLAF), it follows from the provisions of Regulation No 883/2013 concerning investigations conducted by OLAF, and particularly from recital 31 and Article 11 of that regulation, that the report and recommendations drawn up by OLAF on completion of an external investigation and forwarded to the competent authorities of the Member States cannot lead automatically to the initiation of national administrative or judicial proceedings, or, a fortiori, to the adoption of subsequent legal measures. It is for the national authorities to decide what action to take, and they are accordingly the only authorities with the power to adopt decisions capable of affecting the legal position of those persons in relation to which OLAF has recommended that such proceedings be instigated. Similarly, the forwarding of information by OLAF to the national authorities cannot be regarded as an act having an adverse effect since, under Article 12 of Regulation No 883/2013, it is for the authorities receiving information from OLAF to assess, within the limits of their own powers, the content and full significance of that information and, therefore, what action should be taken upon it.

Moreover, alleged infringements by OLAF of procedural rules, the right to proof and an inter partes hearing, and of fundamental rights and the applicant’s right to judicial protection against unlawful inquiries, cannot confer on that report the status of an act adversely affecting the applicant. A challenge lies against such failures only in support of an action directed against a subsequent challengeable act, to the extent to which they have influenced its content, and not independently of such an act. In that regard the seriousness of an alleged infringement by the institution concerned or the extent of its adverse impact on the observance of fundamental rights cannot justify an exception to the absolute bars to proceedings laid down by the Treaty and make it possible to challenge acts that are not open to challenge because they do not produce binding legal effects. Whether an act is open to challenge cannot be deduced from its possible unlawfulness.

(see paras 13, 22, 29, 42, 43)

2. Having regard to the general scheme and purpose of Regulation No 883/2013, Article 11(1) of that regulation cannot be interpreted as entailing obligations for the national authorities to which the OLAF report and recommendations are addressed as to the action that they should take on the measures in question in respect of the persons referred to in them. Whilst the second subparagraph of Article 11(1) of Regulation No 883/2013 provides that the said recommendations ‘shall’, where appropriate, indicate any disciplinary, administrative, financial and/or judicial action to be taken by the competent authorities of the Member States concerned, that provision relates not to the effects, but only to the content of the report and recommendations.

Where, therefore, the national authorities to decide what action to take on the recommendations forwarded to them by OLAF, it is for them themselves to ascertain whether the information received justifies or requires the bringing of proceedings. Consequently, judicial protection against such proceedings must be ensured at national level with all the guarantees provided by national law, including those which follow from the fundamental rights that, as an integral part of the general principles of EU law, must also be observed by the Member States when they implement EU rules. In proceedings brought at national level, the court seised has the possibility, or in some cases the obligation, by means of a request to the Court of Justice for a preliminary ruling under Article 267 TFEU, of putting questions to the Court of Justice, possibly at the instigation of the parties, on the interpretation of provisions of EU law which it considers necessary to enable it to give judgment.

(see paras 23, 26, 27, 40)

3. See the text of the decision.

(see para. 25)

4. See the text of the decision.

(see paras 34, 35)

5. It does not in any way follow from Articles 38 and 39 of Regulation No 952/2013 or from Article 24 of Commission Implementing Regulation (EU) 2015/2447 of 24 November 2015 laying down detailed rules for implementing certain provisions of Regulation No 952/2013 that, by reason of an OLAF report concerning the undue recovery of customs duties and the recommendations of the Director General of OLAF as to the action to be taken as a result of the investigation, an importer referred to in that report should automatically be regarded as not satisfying the criterion laid down in Article 39(a) of Regulation No 952/2013 that it must not have committed any serious infringement or repeated infringements of customs legislation and taxation rules, and must have had no record of serious criminal offences relating to the economic activity of the applicant for the repayment or remission concerned.

Under Article 29(4) of Regulation No 2447/2015, it is for the national customs authority to examine whether the criteria laid down in Article 39 of Regulation No 952/2013 are fulfilled. To that end that authority has its own discretion to take account, in particular, of the specific characteristics of economic operators, in particular of small and medium-sized enterprises. The national customs authority can also, under Article 24(2) of Regulation No 2447/2015, concerning the criterion referred to in Article 39(a) of Regulation No 952/2013, consider an infringement to be of minor importance, in relation to the number or size of the related operations and take into account the fact that it has no doubt as to the good faith of the applicant. Consequently, since it is for the national customs authorities to apply EU customs law and, in particular, to make their own assessment of any application for repayment or remission submitted by the applicant and of any application for the status of authorised economic operator, the report and recommendations of OLAF do not in any way prejudice the exercise of that discretion.

(see paras 36-38)

6. With regard to the argument that a reference for a preliminary ruling would supposedly be less effective than a direct action for annulment in challenging EU measures, such an allegation, even if proved, could not entitle the EU judicature to usurp the function of the founding authority of the European Union in order to change the system of legal remedies and procedures established by the Treaties and designed to give the Court of Justice and the General Court power to review the legality of acts of the institutions. It certainly cannot make it possible to challenge acts which are not challengeable because they do not produce binding legal effects for the purposes of the first paragraph of Article 263 TFEU.

(see para. 41)