Internacional de Productos Metálicos, SA v European Commission.
Date: 2018-10-18
32


It must be recalled at the outset 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. Second, such persons may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them (see, inter alia, judgments of 17 September 2015, Mory and Others v Commission, C‑33/14 P, EU:C:2015:609, paragraphs 59 and 91, and of 13 March 2018, Industrias Químicas del Vallés v Commission, C‑244/16 P, EU:C:2018:177, paragraph 39).
34


In that respect, it should be recalled that it is clear from settled case-law that persons other than those to whom a decision is addressed may claim to be individually concerned only if the measure in respect of which annulment is sought 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 these factors distinguishes them individually just as in the case of the person addressed (judgments of 3 October 2013, Inuit Tapiriit Kanatamiand Others v Parliament and Council, C‑583/11 P, EU:C:2013:625, paragraph 72, and of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 63).
35


As the General Court noted in paragraph 28 of the order under appeal, it is also clear from settled case-law that the possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that those persons must be regarded as being individually concerned by that measure as long as it is applied by virtue of an objective legal or factual situation defined by the measure at issue (judgments of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 47, and of 13 March 2018, Industrias Químicas del Vallés v Commission, C‑244/16 P, EU:C:2018:177, paragraph 88).
36


Although it is true, as the General Court noted in paragraph 29 of the order under appeal, that where a measure affects a group of persons who were identified or identifiable when that measure was adopted by reason of criteria specific to the members of the group, those persons may nevertheless be individually concerned by that measure inasmuch as they form part of a limited class of economic operators and that can be the case particularly when the decision alters rights acquired by the individual prior to its adoption (see, to that effect, judgments of 13 March 2008, Commission v Infront WM, C‑125/06 P, EU:C:2008:159, paragraphs 71 and 72, and of 27 February 2014, Stichting Woonpunt and Others v Commission, C‑132/12 P, EU:C:2014:100, paragraph 59): those conditions are not met in the present case.
49


In order to examine the question of whether, as the appellant submits by its second ground of appeal, the General Court erred in law by finding, in paragraphs 34 to 38 of the order under appeal, that the regulation at issue entails implementing measures, within the meaning of the final limb of the fourth paragraph of Article 263 TFEU, it should be recalled that, as the General Court correctly emphasised in paragraph 34 of that order, the expression ‘which … does not entail implementing measures’ in that provision, 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 did not have a legal remedy before the European Union 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 (judgments of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 29, and of 13 March 2018, Industrias Químicas del Vallés v Commission, C‑244/16 P, EU:C:2018:177, paragraph 42).
50


By contrast, where a regulatory act entails implementing measures, judicial review of compliance with the European Union 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 European Union judicature are protected against the application to them of such an act by the ability to challenge the implementing measures which the act entails (judgments of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 30, and of 13 March 2018, Industrias Químicas del Vallés v Commission, C‑244/16 P, EU:C:2018:177, paragraph 43).
51


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 European Union 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 (judgments of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 31, and of 13 March 2018, Industrias Químicas del Vallés v Commission, C‑244/16 P, EU:C:2018:177, paragraph 44).
52


As the Court has already 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 (judgments of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 32, and of 13 March 2018, Industrias Químicas del Vallés v Commission, C‑244/16 P, EU:C:2018:177, paragraph 45).
53


Furthermore, in the context of that assessment, it is necessary to refer exclusively to the subject matter of the action and, where an applicant seeks only the partial annulment of an act, it is solely any implementing measures which that part of the act may entail that must, as the case may be, be taken into consideration (judgments of 10 December 2015, Kyocera Mita Europe v Commission, C‑553/14 P, not published, EU:C:2015:805 paragraph 45, and of 13 March 2018, Industrias Químicas del Vallés v Commission, C‑244/16 P, EU:C:2018:177, paragraph 46).
54


Moreover, it is irrelevant, in that regard, whether those measures are mechanical in nature (judgments of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraphs 41 and 42, and of 10 December 2015, Kyocera Mita Europe v Commission, C‑553/14 P, not published, EU:C:2015:805, paragraph 46).
56


In so far as the appellant submits that that provision does not require any implementing measure for it to produce legal effects because it merely repeals the anti-dumping duties in question, it should be noted that the fact that a regulatory act of the European Union entails implementing measures, within the meaning of the final limb of the fourth paragraph of Article 263 TFEU, so that certain legal effects of the act only materialise through those measures, does not exclude the possibility of that act producing, on the legal situation of a natural or legal person, other legal effects, which do not depend on the adoption of implementing measures (judgment of 13 March 2018, European Union Copper Task Force v Commission, C‑384/16 P, EU:C:2018:176, paragraph 45).
59


As regards the appellant’s argument in that context that the measures taken by the national authorities for the purpose of collecting the anti-dumping duties in question –– such as, in the present case, the collection notices which were sent to the appellant by the Spanish tax authorities –– were adopted under the regulations imposing those anti-dumping duties and not under the regulation at issue, it should be recalled that the final limb of the fourth paragraph of Article 263 TFEU does not require, for a measure to be classified as an implementing measure of a regulatory act, that that act is the legal base of that measure. The same measure may be an implementing measure both of the act the provisions of which constitute its legal base and of a different act, such as, in the present case, the regulation at issue, where all or part of the legal effects of the latter act will be produced, vis-à-vis the applicant, only through the intermediary of that measure (judgment of 13 March 2018, Industrias Químicas del Vallés v Commission, C‑244/16 P, EU:C:2018:177, paragraph 72).
61


Thus, in that context, where an importer believes itself to have been adversely affected by a regulation which it considers unlawful, such as, in the present case, the regulation at issue, which should, so the appellant argues, serve as a basis for the repayment of the relevant anti-dumping duties collected prior to the entry into force of that regulation, it may plead the unlawfulness of that regulation before the competent national court. That court may, and possibly must, then, under the conditions of Article 267 TFEU, refer a question to the Court of Justice concerning the validity of the regulation in question (see, to that effect, judgment of 14 June 2012, CIVAD, C‑533/10, EU:C:2012:347, paragraph 33).