Rotho Blaas Srl v Agenzia delle Dogane e dei Monopoli.
Date: 2018-10-18
28


In that regard, it is settled case-law that the general principle which guarantees any litigant the right to plead, in an action brought against a national measure which adversely affects him, that the EU act forming the basis for that measure is invalid does not preclude such a right from being subject to the condition that the person concerned did not have the right to request the EU judicature directly to annul it, under Article 263 TFEU. However, it is only if it may be considered that a person has, beyond any doubt, the right to seek the annulment of the act concerned, that that person is prevented from pleading its invalidity before the national court with jurisdiction (see, to that effect, judgments of 9 March 1994, TWD Textilwerke Deggendorf, C‑188/92, EU:C:1994:90, paragraph 23; of 18 September 2014, Valimar, C‑374/12, EU:C:2014:2231, paragraphs 28 and 29; and of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraph 18).
29


In that context, it must be recalled at the outset that the admissibility of an action brought by a natural or legal person against an act which is not addressed to him, in accordance with the fourth paragraph of Article 263 TFEU, is subject to the condition that he is 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 that person. Second, he may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to him (see, in particular, 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, Industria Químicas del Vallés v Commission, C‑244/16 P, EU:C:2018:177, paragraph 39).
30


First, it is therefore only if it were to be established that a legal person such as Rotho Blaas was, beyond any doubt, directly and individually concerned by the contested regulations, within the meaning of Article 263 TFEU, fourth paragraph, that he would be prevented from pleading before the referring court that those regulations are invalid (judgment of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraph 57).
31


In that connection, it must be observed that the regulations imposing anti-dumping duties, such as the contested regulations, are normative, in that they apply to all the interested economic operators (see, to that effect, judgments of 21 February 1984, Allied Corporation and Others v Commission, 239/82 and 275/82, EU:C:1984:68, paragraph 11, and of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraph 18).
32


However, it follows from the case-law that a regulation imposing an anti-dumping duty may individually concern several types of economic operators, without prejudice to the possibility that other traders are individually concerned by reason of certain attributes which are peculiar to them and which differentiate them from all other persons (see, to that effect, judgments of 16 May 1991, ExtrametIndustrie v Council, C‑358/89, EU:C:1991:214, paragraph 16, and of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraph 22).
33


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 may be individually concerned (judgment of 18 September 2014, Valimar, C‑374/12, EU:C:2014:2231, paragraph 30 and the case-law cited).
34


Secondly, that may also be so in the case of 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 (judgments of 14 March 1990, Nashua Corporationand Others v Commission and Council, C‑133/87 and C‑150/87, EU:C:1990:115, paragraph 15; of 14 March 1990, Gestetner Holdings v Council and Commission, C‑156/87, EU:C:1990:116, paragraph 18; and of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraph 20).
35


Thirdly, that may further be so in the case of 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 Union market and where the anti-dumping duty itself has been calculated on the basis of those resale prices (judgments of 11 July 1990, Neotype Techmashexport v Commission and Council, C‑305/86 and C‑160/87, EU:C:1990:295, paragraphs 19 and 20, and of 16 April 2015, TMK Europe, C‑143/14, EU:C:2015:236, paragraph 21).
38


Second, as regards the question whether Rotho Blaas could clearly have brought an action under the final limb of the fourth paragraph of Article 263 TFEU against the contested regulations in so far as they constitute regulatory acts which directly concern it and which do not entail implementing measures, within the meaning of that provision, it must be observed that it is by virtue of acts adopted by the competent national authorities that the payment of anti-dumping duties imposed by the contested regulations is imposed on the operators concerned, such as Rotho Blaas in the main proceedings.
39


Therefore, it cannot be held that the contested regulations manifestly do not entail implementing measures for the purposes of the final limb of the fourth paragraph of Article 263 TFEU.
43


As a preliminary point, it must be recalled that the provisions of an international treaty to which the European Union is a party can be invoked in support of an action for the annulment of an act of EU secondary law or a plea that such an act is unlawful only where the nature and broad logic of the treaty in question do not preclude this and where the treaty’s provisions appear, as regards their content, to be unconditional and sufficiently precise (see, in particular, judgment of 13 January 2015, Council and Others v Vereniging Milieudefensie and Stichting Stop Luxhtverontreiniging Utrecht, C‑401/12 P to C‑403/12 P. It is therefore only when both those conditions are met that such provisions may be relied upon before the EU judicature as a criterion in order to assess the legality of an EU act.
44


As regards the WTO agreements, it is clear from settled case-law that, taking account of their nature and structure, they are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the EU institutions (see, in particular, judgments of 23 November 1999, Portugal v Council, C‑149/96, EU:C:1999:574, paragraph 47; of 1 March 2005, Van Parys, C‑377/02, EU:C:2005:121, paragraph 39; and of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74. paragraph 85).
45


In that regard, the Court has held, in particular, that to accept that the courts of the European Union have the direct responsibility for ensuring that EU law complies with the WTO rules would deprive the European Union’s legislative or executive bodies of the discretion which the equivalent bodies of the European Union’s commercial partners enjoy. It is not in dispute that some of the contracting parties, which are amongst the most important commercial partners of the European Union, have concluded from the subject matter and purpose of the WTO agreements that they are not among the rules applicable by their courts when reviewing the legality of their rules of domestic law. Such lack of reciprocity, if admitted, would risk introducing an anomaly in the application of the WTO rules (see, in particular, judgments of 23 November 1999, Portugal v Council, C‑149/96, EU:C:1999:574, paragraphs 43 to 46; of 9 September 2008, FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 119; and of 18 December 2014, LVP, C‑306/13, EU:C:2014, 2465, paragraph 46).
46


More particularly, the Court has had occasion to state that the possibility for an economic operator to argue before the courts of the European Union that EU legislation is incompatible with a decision of the DSB such as, in the present case, the DSB’s decision of 28 July 2011, cannot be accepted. The recommendations or decisions of the DSB finding that the WTO rules have not been complied with cannot, in principle and whatever their legal scope, be fundamentally distinguished from the substantive rules reflecting the obligations agreed to by a member within the framework of the WTO. Therefore, a recommendation or decision of the DSB finding that those rules have not been complied with cannot in principle, any more than the substantive rules contained in the WTO agreements, be relied on before the EU judicature in order to determine whether an EU regulation is incompatible with that recommendation or decision (judgment of 10 November 2011, X and X BV, C‑319/10 and C‑320/10, not published, EU:C:2011:720, paragraph 37 and the case-law cited).
47


It is only in two exceptional situations, which are the result of the EU legislature’s own intention to limit its discretion in the application of the WTO rules, that the Court has accepted that it is for the Courts of the European Union, if necessary, to review the legality of an EU measure and of the measures adopted for its application in the light of the WTO agreements or a decision of the DSB establishing non-compliance with those agreements (see, to that effect, judgment of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 40).
48


The first such situation is where the European Union intends to implement a particular obligation assumed in the context of those WTO agreements and the second is where the EU act at issue refers explicitly to specific provisions of those agreements (judgment of 16 July 2015, Commission v Rusal Armenal, C‑21/14 P, EU:C:2015:494, paragraph 41 and the case-law cited).
52


Finally, as regards Implementing Regulations No 924/2012 and 2015/519, although those regulations reflect, to some extent, the intention of the EU to act on the DSB’s decision of 28 July 2011, having regard to the exceptional nature of the situations which allow a review of legality in the light of the WTO rules, as set out in paragraph 47 of the present judgment, it is not sufficient to hold that, by adopting those regulations, the EU intended to implement a specific obligation assumed within the framework of the WTO, which may justify an exception to the principle that WTO rules cannot be relied upon before the courts of the European Union and enabling those courts to review the legality of the EU provisions at issue having regard to those rules (see, to that effect, judgments of 1 March 2005, Van Parys, C‑377/02, EU:C:2005:121, paragraphs 42 to 48, and of 4 February 2016, C & J Clark International and Puma, C‑659/13 and C‑34/14, EU:C:2016:74, paragraphs 93 to 98).