Accordingly, a decision to revoke the assurance as to the grant of nationality, such as the decision of 6 July 2017 of the Wiener Landesregierung (Government of the Province of Vienna, Austria), which entails the permanent loss of <mask> by the person concerned in a situation such as that at issue in the main proceedings, on the ground of administrative offences related to road safety, specifically offences which do not entail the withdrawal of the individual’s driving licence, is not in compliance with the principle of proportionality under EU law.


The principle established by the Court in the judgment in Micheletti and Others   was confirmed in the judgment in Rottmann.   In examining a decision to withdraw naturalisation adopted by the German authorities, the Court also clarified the scope of that principle.   Thus, after reiterating the competence of the Member States in the sphere of the acquisition and loss of nationality,   the Court made clear that ‘the fact that a matter falls within the competence of the Member States does not alter the fact that, in situations covered by European Union law, the national rules concerned must have due regard to the latter’.   In that connection, it took as a basis settled case-law on the situations in which legislation adopted in a matter falling within the scope of national powers is assessed in the light of EU law.   Since such situations fall within the scope of EU law, they must therefore comply with EU law and are subject to review by the Court.   <mask> cannot be rendered redundant and, therefore, the rights conferred by it cannot be infringed by the adoption of state measures.


In particular, as the Court has repeatedly held and as is apparent from recitals 1 and 2 of Directive 2004/38, <mask> confers on each Union citizen a primary and individual right to move and to reside freely within the territory of the Member States, subject to the limitations and restrictions laid down by the Treaties and the measures adopted to give them effect, freedom of movement for persons being, moreover, one of the fundamental freedoms of the internal market, as affirmed in Article 45 of the Charter of Fundamental Rights (see, to that effect, judgment of 5 May 2011, McCarthy, C‑434/09, EU:C:2011:277, paragraph 27 and the case-law cited).


Since, in the context of the assurance of naturalisation, Austrian legislation requires, as an essential condition, the renunciation of the nationality of the State of origin, whilst however retaining the power to revoke that assurance, the exercise of such a revocation means that the citizen of the Union is as a matter of course faced with the loss of his or her <mask> and that that situation therefore falls within the scope of EU law.


However, that is not the case in the area of <mask> and the free movement of persons. As regards the right to move and reside freely within the territory of all of the Member States, which Union citizens derive directly from Articles 20(2)(a) and 21(1) TFEU, the Member States’ discretion in relation to immigration cannot adversely affect implementation of the provisions on citizenship of the Union or freedom of movement, even if those provisions concern not only the situation of citizens of the Union but also that of third-country nationals who are members of their families. The contrary would, clearly, not be compatible with the establishment of an internal market, which ‘implies that the conditions of entry and residence of a Union citizen in a Member State whose nationality he does not possess are the same in all the Member States’.


(Reference for a preliminary ruling – <mask> – Right to move and reside freely within the territory of the Member States – Economically inactive Union citizen who has left his Member State of origin to settle in a host Member State for family reunification purposes – Refusal to affiliate that Union citizen to the social security system of the host Member State and to provide public health care benefits – Directive 2004/38/EC – Article 7(1)(b) – Condition requiring ‘comprehensive sickness cover’ – Concept of ‘unreasonable burden’ – Article 24 – Right to equal treatment – Regulation (EC) No 883/2004 – Article 3(1)(a) – Concept of ‘sickness benefit’ – Article 4 and Article 11(3)(e) – Scope – Genuine link of integration with the host Member State – Consequences)


As regards Article 20 TFEU, it should be noted that, while establishing <mask>, that article merely provides that citizens of the Union are to enjoy the rights conferred in the Treaty and are subject to the duties laid down in the Treaty. It cannot, therefore, in that respect, be applied independently of the specific provisions of the Treaty which govern the rights and the duties of the citizens of the Union, such as, in particular, Article 45 TFEU (see, to that effect, judgments of 16 December 2004, My, C‑293/03, EU:C:2004:821, paragraph 32, and of 31 May 2017, U, C‑420/15, EU:C:2017:408, paragraph 17).


In the second place, as I have explained in point 69 of this Opinion, the situation in which, as in the present case, a national of a Member State is faced with the permanent loss of his or her <mask> and, therefore, with the loss of all of the rights conferred by Article 20 TFEU is comparable to that in which the person concerned is faced with the loss of the genuine enjoyment of the substance of the rights conferred by that article in that, in both those situations, citizenship of the Union has been rendered redundant.


(Request for a preliminary ruling from the Cour constitutionnelle (Constitutional Court, Belgium)) (Reference for a preliminary ruling – <mask> – Articles 20 and 21 TFEU – Directive 2004/38/EC – Right of citizens of the Union and their family members to move and reside freely within the territory of a Member State – Decision to terminate residence on grounds of public policy – Preventive measures to avoid any risk of absconding during the period allowed for leaving or during the extension of that period – National provisions identical or similar to those applicable to third-country nationals under Article 7(3) of Directive 2008/115/EC – Refusal of the Union citizen to comply with a decision terminating residence on grounds of public policy or public security – Maximum period of detention for the purpose of removal)


To conclude my analysis, I consider it interesting to cite Advocate General Mengozzi who, in his Opinion in Tjebbes and Others,   took the view that ‘in an extreme – and I hope purely hypothetical – case, where the legislation of a Member State provides for withdrawal of an individual’s naturalisation entailing loss of <mask> as a result of a road traffic offence, the disproportionate nature of that measure would be clear because of the disparity between the low degree of gravity of the offence and the dramatic consequence of losing citizenship of the Union’.


(Request for a preliminary ruling — Article 18 TFEU — Article 21 TFEU — <mask> — Right of Union citizens to move and reside freely in the territory of the Member States — Directive 2004/38/EC — Article 27 — Criminal offence of child abduction — Child under the guardianship of a legal guardian — Parent deprived of part of his or her parental authority transferring the child abroad without the prior consent of the legal guardian)


If the answer to Question 1 is in the affirmative, can a passenger nevertheless hold the air carrier liable for reimbursement of the cost of his ticket if it is to be assumed that his tour organiser, if it were to be held liable, would be financially incapable of actually reimbursing the cost of the ticket and that tour organiser has also not taken any <mask> to guarantee reimbursement?’


Similarly, the Commission is not bound by any requirement whatsoever that a matter be referred to it by a Member State prior to the exercise of the powers conferred on it by, on the one hand, Article 15(1) of the Basic Safeguards Regulation, authorising it to adopt protective measures and, on the other hand, Article 20 of that regulation, authorising it to examine the effects of the <mask> in force and to amend the detailed rules thereof, or even to revoke them. All of those actions, which the Commission may carry out on its own initiative, follow a logic according to which the Commission has, prior to exercising its powers, evidence relating to the existence or otherwise of a problematic situation for EU producers, the source of that evidence being irrelevant.


Thus, Article 7 of the Basic Safeguards Regulation allows the Commission to adopt, inter alia, provisional <mask> in emergency situations. In accordance with Article 4(1) of that regulation, the exercise of that power is exempt from compliance with the requirement that an investigation be carried out prior to the imposition of those measures. However, investigation measures are not excluded. Article 7(3) of the Basic Safeguards Regulation states that the Commission is immediately to conduct whatever investigative measures are still necessary. However, the initiation of such an investigation does not depend on the prior referral to the Commission by a Member State. It would be illogical to impose such a condition when, in particular, it was determined that there was sufficient evidence that an increase in imports had caused or threatened to cause serious injury, in accordance with Article 7(1)(b) of the Basic Safeguards Regulation. The same reasoning explains why it is possible for the Commission to initiate an investigation without prior referral by a Member State, where surveillance measures are already in force and make it possible to adduce sufficient evidence to show that the trends in imports might make it necessary to adopt protective measures.


The fact of having applied the threshold referred to in Article 18 of the Basic Safeguards Regulation on the basis of each product category taken separately is therefore a reflection of the flexibility recognised in WTO case-law on the application of Article 9 of the WTO Agreement on Safeguards, as cited by the Commission in its written pleadings, and more specifically the findings of the WTO Panel set out in its report in Dominican Republic – <mask> on Imports of Polypropylene Bags and Tubular Fabric (WT/DS 415, 416, 417, 418/R, 21 January 2012, paragraphs 7.367 to 7.391), concerning the relevant elements in that connection contained in the report of the WTO Appellate Body in United States – Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea (WT/DS 202/AB/R, 15 February 2002, paragraph 181).


Thus, the consequences claimed by the applicant are inherent in the Commission’s procedure for examining the justification of <mask>, as provided for in Article 11 of Directive 2006/42. As recalled in paragraph 54 above, it follows from all the provisions of Directive 2006/42, as interpreted by the case-law, that the contested decision requires the Member States to take appropriate measures relating to the placing or retaining of the products at issue on their market. That is an essential element of the safeguard clause procedure laid down in Article 11 of Directive 2006/42, which is intended to ensure uniform application.


The Court concludes from the foregoing that, when adopting <mask>, the Commission must, in so far as the circumstances of the case permit, inquire into the negative effects which its decision might have on the economy of the Kingdom of Cambodia, as a beneficiary country of the EBA regime, as well as on the interested parties, and thus finds that that those parties are to be regarded, for the purposes of the admissibility of an action, as individually concerned in so far as they are members of a limited class of natural or legal persons who were identified or identifiable by the Commission and particularly affected by the contested regulation (see, to that effect, judgments of 17 January 1985, Piraiki-Patraiki v Commission, 11/82, EU:C:1985:18, paragraphs 28 and 31, and of 11 February 1999, Antillean Rice Mills and Others v Commission, C‑390/95 P, EU:C:1999:66, paragraph 25 and the case-law cited).


In the fourth place, in so far as concerns the Commission’s objection to the existence of a closed class on account of the fact that any actual or potential importer, established in the territory of the European Union, of products coming from Moldova and falling within the categories covered by the <mask> would also be affected by the contested act, it is necessary to identify the body of evidence capable of distinguishing the applicant individually within the meaning of the relevant case-law (see, to that effect, judgment of 16 May 1991, Extramet Industrie v Council, C‑358/89, EU:C:1991:214, paragraph 17).


The contested regulation temporarily terminates the preferential access to the EU market enjoyed by the Kingdom of Cambodia as a country listed in Annex IV to the GSP Regulation, which contains the list of countries benefiting from the EBA regime, referred to in Article 1(2)(c) of the GSP Regulation. The imposition of <mask> therefore changes both the legal and economic conditions under which the marketing of Indica rice originating in Cambodia takes place on the EU market. Accordingly, the legal position of the Kingdom of Cambodia is directly and substantially affected.


In so far as its analysis of the data led it to conclude provisionally that the Union steel industry was threatened with serious injury in so far as concerned 23 of the 26 product categories in respect of which an increase in imports was established following the investigation, the Commission adopted Implementing Regulation (EU) 2018/1013 of 17 July 2018 imposing provisional <mask> with regard to imports of certain steel products (OJ 2018 L 181, p. 39; ‘the provisional regulation’).


Thus, in accordance with the requirement recalled in paragraph 97 above, the Commission examined the most appropriate measures, pursuant to Article 16 of the Basic Safeguards Regulation, which lead it to analyse each product category in order to determine the tariff-rate quotas (see, in that connection, Annex III.2 to the contested regulation, read in conjunction with recital 191 of that regulation). In that context, as stated in recitals 190 and 191 of the contested regulation, the Commission took into account the 3% threshold referred to in Article 18 of the Basic Safeguards Regulation. In that way, it avoided making imports originating in developing countries which are members of the WTO subject to <mask> in respect of all product categories when, in reality, those imports concerned only a small number of categories. Such an approach thus makes it possible to achieve a result that is proportionate to the objectives pursued, unlike that to which the interpretation of Article 18 of the safeguard regulation, advocated by the applicant, would otherwise have given rise.


Article 8(2) of Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 must be interpreted as meaning that a passenger who has, under Council Directive 90/314/EEC of 13 June 1990 on package travel, package holidays and package tours, as implemented in national law, the right to hold the organiser of his package tour liable, in the event of its cancellation, for repayment of all the sums which he has paid to it under their contract is not entitled to claim reimbursement of the cost of his air ticket from the operating air carrier, on the basis of that regulation, including where the organiser of his package tour is financially incapable of reimbursing the cost of the ticket and has not taken the <mask> necessary to ensure such reimbursement.


As a preliminary point, it should be noted that the applicant’s first plea is based on the premiss that there is a principle requiring the Commission to treat different third countries equally with regard to the application of <mask>. The applicant takes the view that such a principle is apparent from Article 15(5) of the Basic Safeguards Regulation, read in the light of Article 2(2) of the WTO Agreement on Safeguards, since the latter provision reflects the most-favoured-nation principle enshrined in Article 1(1) of the GATT 1994. Thus, according to the applicant, safeguard measures should be implemented in line with the principle of non-discrimination.


Moreover, given that, as is apparent from that case-law, it is for the Commission to review whether the <mask> concerned are justified, by ensuring, inter alia, that the legal and factual reasons for their adoption are well founded, it must be held that the review carried out by the Commission may be based only on circumstances which existed at the time of the adoption of the SWEA decision, and not on subsequent circumstances.


Thirdly, having regard to the principles set out in paragraphs 63 to 65 above, it is necessary to reject the Commission’s argument that the legal situation of the exporting members of the CRF is not directly affected because the <mask> imposed by the contested regulation apply only to importers established in the European Union. Those measures directly affect the exporting members of the CRF, which are limited in their economic activity. The temporary reintroduction of Common Customs Tariff duties on imports of Indica rice originating in Cambodia into the EU is tantamount to limiting access to the EU market to exporters who previously enjoyed preferential access to the EU market by means of a special scheme of tariff preferences. Thus, the mere fact that the exporting members of the CRF do not pay the tariffs applicable to imports of Indica rice originating in Cambodia into the European Union, since those duties are paid by importers, does not support the conclusion that the contested regulation has no effect on their legal situation.


Next, the fact that, in the case of a regulation introducing <mask>, the factor which made it possible to recognise the hybrid nature of the anti-dumping and anti-subsidy regulations, namely the use of the operators’ own figures, which are then distinguished individually, does not preclude the existence of particular attributes peculiar to the applicant or of a factual situation differentiating it from all other persons and distinguishing it individually in the same way as an addressee.


The Commission’s obligation to take into consideration the specific situation of the Kingdom of Cambodia is borne out by the finding that the adoption of <mask> on the basis of Article 26 of the GSP Regulation infringes and derogates from the freedom to export resulting from the preferential access to the EU market granted to the Kingdom of Cambodia on the basis of the GSP Regulation.


Moreover, there is no indication in the wording of Article 8(2) of Regulation No 261/2004, or indeed in the wording of other provisions thereof,   that its authors wished to exempt circumstances such as those described in the second question referred,   with the result that reimbursement of the cost of the ticket could be demanded from the air carrier in the event that the organiser of the package travel is financially incapable of making the reimbursement under Directive 90/314 and has not taken any <mask>.   If it is not to provide an overly broad or even contra legem interpretation, the Court cannot introduce into a provision of EU law legal criteria which have not been laid down or even envisaged   by the EU legislature.


On 31 January 2019, taking the view that the Union steel industry was threatened with serious injury in respect of 26 categories of steel products, the Commission adopted the contested regulation, which put in place definitive <mask> for a period of three years in the form of category-specific tariff-rate quotas the quantitative ceiling of which was set at the average import volume of the countries concerned during the period from 2015 to 2017, increased by 5% to ensure that traditional trade flows are maintained and existing user and importing industry in the Union are sufficiently supported.


First, as regards the interrelationship between the products in question, the applicant essentially claims, first of all, that apart from two product categories which may be used as raw materials, the categories of steel products cannot, for the most part, be used for manufacture; next, that those products are not interchangeable from a commercial point of view and do not satisfy the same consumer requirements; and, lastly, that since the various categories of steel products are not manufactured with the same equipment, the amount of the investment required in order to ensure that imports of products not subject to <mask> replace imports of products subject to such measures means that there is no credible threat of that occurring. According to the applicant, in so far as, contrary to what the Commission contends, the latter failed to take account of those factors, it committed a manifest error of assessment and infringed the principle of sound administration.


In that regard, it must, first of all, be noted that the judicial protection afforded to undertakings individually concerned by <mask> cannot be affected by the mere fact that the measures are imposed by reference to a State and not to individual undertakings (see, to that effect, judgment of25 September 1997, Shanghai Bicycle v Council, T‑170/94, EU:T:1997:134, paragraph 38). Thus, the fact that the safeguard measures imposed by the contested regulation are imposed at national level, and not by reference to the exporters identified, cannot in itself prevent the exporting members of the CRF from obtaining judicial protection.


In the first place, as regards the applicant’s arguments alleging infringement of the principle of proportionality in so far as the Commission did not take account of its upgrade plan presented at the Gustavsberg bowling centre in 2016 or of the positive observations of the independent study in that regard, it must be noted, as submitted by the Commission, that the contested decision concerns the question as to whether or not the <mask> taken by the SWEA in 2013 were justified.


First, in the light of the global analysis carried out by the Commission in the contested regulation, the applicant takes the view that the only sudden, sharp or significant increase in imports which could be claimed occurred between 2013 and 2016, that is to say, three years prior to the adoption of that regulation. Consequently, the increase in imports found by the Commission is not sufficiently recent to justify the imposition of <mask>. It is argued that this assessment of the ‘recent’ nature is consistent with WTO case-law. In that connection, the applicant observes that it is also apparent from that case-law that (i) that it is not sufficient that imports have increased at a given time in the past and that they have remained stable to justify the imposition of safeguard measures, and (ii) that the analysis of trends during the most recent period must substantiate the sudden and recent nature of the increase in imports, which is not apparent from the qualitative analysis of the trends in imports in the present case.


Following that safeguard investigation, the Commission, having concluded that the product concerned was being imported in volumes and at prices that were causing serious difficulties to the EU industry, decided, by adopting its Implementing Regulation (EU) 2019/67 of 16 January 2019 imposing <mask> with regard to imports of Indica rice originating in Cambodia and Myanmar/Burma (OJ 2019 L 15, p. 5; ‘the contested regulation’), to temporarily reintroduce Common Customs Tariff duties on imports of the product concerned. The Commission considered that the safeguard measures should be adopted for a period of three years and introduced a progressive reduction in the rate of duty applicable.


9 Article 38 of the Act of Accession provides: ‘If there are serious shortcomings or any imminent risks of such shortcomings in Bulgaria or Romania in the transposition, state of implementation, or the application of the framework decisions or any other relevant commitments, instruments of cooperation and decisions relating to mutual recognition in the area of criminal law under Title VI of the EU Treaty and Directives and Regulations relating to mutual recognition in civil matters under Title IV of the EC Treaty, the Commission may, until the end of a period of up to three years after accession, upon the motivated request of a Member State or on its own initiative and after consulting the Member States, take appropriate measures and specify the conditions and modalities under which these measures are put into effect. These measures may take the form of temporary suspension of the application of relevant provisions and decisions in the relations between Bulgaria or Romania and any other Member State or Member States, without prejudice to the continuation of close judicial cooperation. The safeguard clause may be invoked even before accession on the basis of the monitoring findings and the measures adopted shall enter into force as of the first day of accession unless they provide for a later date. The measures shall be maintained no longer than strictly necessary and, in any case, shall be lifted when the shortcomings are remedied. They may however be applied beyond the period specified in the first paragraph as long as these shortcomings persist. In response to progress made by the new Member State concerned in rectifying the identified shortcomings, the Commission may adapt the measures as appropriate after consulting the Member States. The Commission shall inform the Council in good time before revoking the <mask>, and it shall take duly into account any observations of the Council in this respect.’


It is apparent from the case-law cited in paragraph 66 above that, as part of the review which it carries out, the Commission is solely competent to verify whether or not the national <mask>, as adopted and subsequently notified by the Kingdom of Sweden pursuant to Article 11(1) and (2) of Directive 2006/42, are justified and, consequently, whether those measures may, following that review, be definitively maintained.


233 First, as regards the judgment of 10 April 2003, Commission v Nederlandse Antillen (C‑142/00 P, EU:C:2003:217), it should be noted that an appeal was brought in that case before the Court of Justice by the Commission concerning a judgment of the General Court relating to a dispute in which the Netherlands Antilles, an overseas territory linked to the European Community by an association agreement, challenged <mask> in respect of imports of rice originating in overseas countries and territories (OCTs). Those measures were of general application and, despite the fact that they affected the rice-milling sector in the Netherlands Antilles and the latter were the source of most imports of that product originating in the OCTs into the Community, they were not specifically aimed at imports from that particular overseas territory but at imports from all OCTs.


In the light of those essential characteristics of the undervaluation fraud at issue, OLAF requested all those Member States to analyse imports of relevant products coming, inter alia, from China for possible indications of undervalued imports, to carry out appropriate customs checks at customs clearance for the goods concerned in order to check the declared values of those goods and to ensure that they reflected their true market values, and to take appropriate <mask> where there was any suspicion of artificially low invoiced prices.


In that regard, as the applicant observes, Article 16 of the Basic Safeguards Regulation uses the expression ‘such greatly increased quantities’, and Article 9(1)(a) of that regulation refers to a ‘significant’ increase. By its report of 14 December 1999 in Argentina – <mask> on Imports of Footwear [Argentina – Footwear (EC)], the WTO Appellate Body pointed out that it was necessary for ‘the increase in imports [to] have been recent enough, sudden enough, sharp enough, and significant enough, both quantitatively and qualitatively, to cause or threaten to cause serious injury’. In recitals 39 and 47 of the contested regulation, the Commission, relying in particular on that case-law, confirmed that the increase in imports in question satisfied those conditions.


Compliance with such an obligation requires that the decision to impose <mask> be based on a perfect match with the ‘product concerned’. In the present case, the Commission did indeed proceed in such fashion, since the examination of the substantive criteria was carried out in relation to the 26 product categories taken together, which the applicant does not dispute.


A further element emphasising the binding nature of the obligation to achieve the objectives set out in the MCV benchmarks, as pointed out by the Swedish Government, concerns the significant legal consequences attached to non-compliance. As noted in recital 7 of the MCV Decision, if the benchmarks are not achieved, the Commission states that it may apply further <mask> on the basis of Articles 37 and 38 of the Act of Accession, including the suspension of mutual recognition. Furthermore, the specific legal consequences of a hypothetical infringement, which may arise from the particular MCV regime, do not in themselves prevent recourse to the ordinary enforcement instruments through infringement proceedings in the event of the non-fulfilment by Romania of its obligations under the MCV Decision.


In the light of all those considerations, Article 8(2) of Regulation No 261/2004 must, in my view, be interpreted as meaning that a passenger who has, under Directive 90/314, as implemented in national law, the right to hold the organiser of his package tour liable, in the event of its cancellation, for repayment of all the sums which he has paid to it under their contract is not entitled to claim reimbursement of the cost of his air ticket from the operating air carrier, on the basis of that regulation, including where the organiser of his package tour is financially incapable of reimbursing the cost of the ticket and has not taken the <mask> necessary to ensure such reimbursement.


More specifically, the applicant submits that the fact that the Commission found, in the contested regulation, that the Union industry was in a difficult economic situation until 2016 is explained, at least in part, by past material injury caused by past dumping and subsidies against which trade defence measures had been adopted. In that connection, the application stresses that the matter of whether or not anti-dumping and countervailing measures serve different purposes and/or target specific products, as compared to <mask>, is irrelevant.


In the third place, having regard to the above findings, the applicant’s arguments concerning a disproportionate financial burden resulting from the <mask> cannot be upheld. First, the risks which the applicant’s machines pose to the health and safety of humans, as referred to in paragraph 73 above, justify the need to prohibit the placing on the market and the withdrawal from the market of the products at issue, notwithstanding the cost that that might represent for the applicant. Secondly, the distinction between the safeguard measures for existing and new products, the three alternative solutions for withdrawing the products at issue and the fact that, under the first of those solutions, the number of deficiencies to be corrected in order to maintain those products on the market was reduced show, in that regard, that the approach adopted by the SWEA and the Commission was proportionate to the financial burden which the safeguard measures might impose on the applicant.


According to the Commission, on the one hand, the measures taken in the present case aim at permitting traditional trade flows to come free of additional protection so that there is enough supply and competition on the Union market and, on the other hand, the tariff-rate quota levels are set in such a way as to prevent any trade diversion arising in the context of the Section 232 measures that could negatively affect Union industry. Thus, the above-quota tariff would, in principle, apply only if trade diversion due to the measures adopted by the United States of America were to trigger a change in the situation from threat of serious injury to serious injury. In that regard, the Commission considers that the country-specific tariff-rate quotas set out in Annex IV.1 to the contested regulation were established in a manner which would minimise the impact of the <mask> on regular trade coming from Moldova.


That recital does not concern the Commission’s power to initiate an investigation, but rather the Member States’ obligation to provide information in order to enable the Commission to fulfil the obligations conferred on it by the European Parliament and the Council of the European Union, in order to protect the interests of the European Union in the context of the common commercial policy, both as regards the initiation of surveillance of imports of a product originating in a third country, in accordance with Chapter IV of the Basic Safeguards Regulation, and the imposition of <mask> in respect of a product imported into the European Union, in accordance with Chapter V of that regulation.


The Commission itself raised the objective of the GSP Regulation as a reason justifying progressive liberalisation of the <mask> over the period of three years and thus considered that a progressive reduction in the rate of duty applicable should be sufficient for the EU industry to counteract the deterioration of its economic or financial situation (recitals 81 to 85 of the contested regulation).


Fourthly, a company whose products are subject to <mask> is directly concerned by a regulation introducing such measures because that regulation obliges the customs authorities of the Member States to levy the duties imposed without leaving them any discretion (see, to that effect, judgments of 25 September 1997, Shanghai Bicycle v Council, T‑170/94, EU:T:1997:134, paragraph 41 and the case-law cited, and of 19 November 1998, Champion Stationery and Others v Council, T‑147/97, EU:T:1998:266, paragraph 31). In the present case, it has already been found, in paragraphs 66 and 68 above, that the contested regulation leaves no discretion to the addressees responsible for its implementation.


The applicant adds that its interpretation of Article 18 of the Basic Safeguards Regulation is consistent with the requirement to observe parallelism between the scope of a safeguard investigation and the scope of a safeguard measure, as established by the WTO Appellate Body. In the present case, the applicant observes that, since the investigation concerned the 26 product categories taken together, the scope of the <mask> should cover the 26 product categories taken together. As the non-application of those measures to developing countries is a constituent element of the scope of the protective measures, that exclusion should also be based on the scope of the investigation, namely the 26 product categories taken together.


In the second place, in so far as concerns the analysis, by the Commission, of the figures which led it to find that the applicant is not the sole exporter of the product concerned in Moldova, first, it should be noted that, without having been specifically challenged on that point, the applicant stresses the marginal nature of imports from Moldova in categories of steel products other than categories Nos 13 and 16. Consequently, although the fact of being the biggest exporting producer of the products subject to <mask> is not, in itself, such as to distinguish the applicant individually (see, to that effect, judgment of 17 January 2002, Rica Foods v Commission, T‑47/00, EU:T:2002:7, paragraph 39), it is not irrelevant, inasmuch it forms part of a set of factors constituting a particular situation which distinguishes the applicant, with regard to the measure at issue, from all other economic operators (see, by analogy, judgment of 16 May 1991, Extramet Industrie v Council, C‑358/89, EU:C:1991:214, paragraph 17).


8 Article 37 of that act reads as follows: ‘If Bulgaria or Romania has failed to implement commitments undertaken in the context of the accession negotiations, causing a serious breach of the functioning of the internal market, including any commitments in all sectoral policies which concern economic activities with cross-border effect, or an imminent risk of such breach the Commission may, until the end of a period of up to three years after accession, upon motivated request of a Member State or on its own initiative, take appropriate measures. Measures shall be proportional and priority shall be given to measures which least disturb the functioning of the internal market and, where appropriate, to the application of the existing sectoral safeguard mechanisms. Such <mask> shall not be invoked as a means of arbitrary discrimination or a disguised restriction on trade between Member States. The safeguard clause may be invoked even before accession on the basis of the monitoring findings and the measures adopted shall enter into force as of the first day of accession unless they provide for a later date. The measures shall be maintained no longer than strictly necessary and, in any case, shall be lifted when the relevant commitment is implemented. They may however be applied beyond the period specified in the first paragraph as long as the relevant commitments have not been fulfilled. In response to progress made by the new Member State concerned in fulfilling its commitments, the Commission may adapt the measures as appropriate. The Commission shall inform the Council in good time before revoking the safeguard measures, and it shall take duly into account any observations of the Council in this respect.’


First of all, it follows from the case-law cited in paragraphs 40 to 42 above that it cannot be ruled out that a regulation imposing <mask>, which is legislative in nature and scope, in so far as it applies generally to the economic operators concerned, is liable to be of direct and individual concern to some of those operators, including, in particular, under certain conditions, the producers and exporters of the product in question.


In the fourth place, it must be stated that, in view of both the precise references to the justifications provided by the Kingdom of Sweden and the detailed risk analysis of the use of the products at issue made by the Commission, the applicant’s arguments concerning the failure, in the contested decision, to state adequate reasons regarding the proportionality of the <mask> are unfounded.


Measures shall be proportional and priority shall be given to measures which least disturb the functioning of the internal market and, where appropriate, to the application of the existing sectoral safeguard mechanisms. Such <mask> shall not be invoked as a means of arbitrary discrimination or a disguised restriction on trade between Member States. The safeguard clause may be invoked even before accession on the basis of the monitoring findings and the measures adopted shall enter into force as of the first day of accession unless they provide for a later date. The measures shall be maintained no longer than strictly necessary and, in any case, shall be lifted when the relevant commitment is implemented. They may however be applied beyond the period specified in the first paragraph as long as the relevant commitments have not been fulfilled. In response to progress made by the new Member State concerned in fulfilling its commitments, the Commission may adapt the measures as appropriate. The Commission shall inform the Council in good time before revoking the safeguard measures, and it shall take duly into account any observations of the Council in this respect.’


Moreover, according to case-law, regulations imposing <mask>, although legislative in their nature and scope, in so far as they apply generally to the economic operators concerned, are liable to be of individual concern to certain natural or legal persons by reason of certain attributes peculiar to them, or by reason of a factual situation which differentiates them from all other persons (see judgment of 10 April 2003, Commission v Nederlandse Antillen, C‑142/00 P, EU:C:2003:217, paragraph 65 and the case-law cited, and order of 30 April 2003, VVG International and Others v Commission, T‑155/02, EU:T:2003:125, paragraphs 40 and 41 and the case-law cited; see also, to that effect, judgment of 17 January 2002, Rica Foods v Commission, T‑47/00, EU:T:2002:7, paragraphs 34 and 36). A regulation imposing safeguard measures may therefore, like a regulation imposing anti-dumping duties, be regarded as being of a hybrid nature.


First, it should be noted that it follows from the case-law cited in paragraphs 100 and 101 above that an undertaking cannot be considered directly concerned by a regulation imposing <mask> solely on account of its capacity as a producer of the product subject to that measure, since the capacity of exporter is essential in that regard. It follows from that case-law that whether certain producers and exporters of the product at issue are directly concerned by a regulation imposing safeguard measures is connected, in particular, with the fact that they are alleged to be responsible for the serious difficulties caused, or likely to be caused, to the European Union industry. A producer that does not export its production to the EU market, but simply sells it on its national market, cannot be for the cause of such difficulties (see, to that effect, judgment of 28 February 2019, Council v Growth Energy and Renewable Fuels Association, C‑465/16 P, EU:C:2019:155, paragraph 74).


On 20 April 2007, the European Anti-Fraud Office (OLAF) sent mutual assistance message 2007/015 to Member States to inform them of the risk, inter alia, of extreme undervaluation of imports of textiles and footwear from China which in most cases were made by ‘shell companies’, undertakings registered for the sole purpose of giving a fraudulent transaction the appearance of legitimacy and which, upon investigation, were often found not to have a place of business at the address given to customs authorities. OLAF explained that, in most of the cases examined, the declared values were well below 0.50 United States dollars (USD) per kilogram (kg) and even below 0.10 USD per kilogram. In the light of that fraud mechanism (‘the undervaluation fraud at issue’), OLAF requested all Member States to monitor their imports of textiles and footwear from, inter alia, China for possible indications of undervalued imports, to carry out appropriate checks at customs clearance for such imports in order to verify the declared customs values to ensure that they reflected true market values, and to take appropriate <mask> where there was any suspicion of artificially low invoiced prices.


As a preliminary point, it claims that the lawfulness of the decisions made by the Commission concerning compliance with the conditions for imposing <mask> under Article 16 of Regulation (EU) 2015/478 of the European Parliament and of the Council of 11 March 2015 on the common rules for imports (OJ 2015 L 83, p. 16; ‘the Basic Safeguards Regulation’) should be reviewed in the light of the General Agreement on Tariffs and Trade (GATT) 1994 and of the World Trade Organization (WTO) Agreement on Safeguards as well as related WTO case-law or, at the very least and in the alternative, that those agreements and that case-law may constitute useful interpretative tools in delineating the conditions and requirements that should be met in order to justify the imposition of safeguard measures.


Second, the Commission states that the contested regulation is not of a hybrid nature, in the sense that it contains individual decisions personalising the applicant and thus creating a ‘class’. The Commission observes that, although that nature has been recognised in the case of anti-dumping and anti-subsidy regulations, that recognition is based on specific characteristics of those regulations (namely the individual and personal establishment of the anti-dumping or countervailing duty rate for each trader or exporting producer on the basis of its own individual data alone), which are not found in regulations imposing <mask>, the purpose of which is to protect the Union steel market against a surge in imports.


Self-evidently it is for importers established in the European Union to apply those measures, given that the acts adopted by the EU institutions are not, as a rule, intended to apply outside the territory of the European Union. Despite that, the entities affected by the contested regulation are liable to be directly concerned by the <mask> applied to them. Temporarily reintroducing the Common Customs Tariff duties on imports of the product concerned into the European Union is tantamount to limiting the access of certain entities to the EU market, including the Kingdom of Cambodia, which previously benefited from preferential access to the EU market by means of a special scheme of tariff preferences (see, to that effect and by analogy, judgment of 13 September 2018, Almaz-Antey v Council, T‑515/15, not published, EU:T:2018:545, paragraph 65).


In the light of the foregoing, it must be held that the members of the CRF that are exporters of Indica rice originating in Cambodia to the European Union are to be regarded as forming part of a closed class within the meaning of the case-law, since they were expressly named in the contested regulation and participated in the procedure leading to the adoption of that regulation, in which information relating to their business activities was used to impose the <mask> against them and for which the consequences of those measures were taken into account for the purpose of setting the Common Customs Tariff duties. Those undertakings are therefore individually concerned by the contested regulation.


‘Health claims as referred to in Article 13(1)(a) may be made from the date of entry into force of this regulation until the adoption of the list referred to in Article 13(3), under the responsibility of food business operators provided that they comply with this regulation and with existing national provisions applicable to them, and without prejudice to the adoption of <mask> as referred to in Article 24.’


The applicant asserts that the fact that the Commission conducted an examination of the 26 product categories taken together (i) cannot be justified since those products are not interrelated, and (ii) leads to distortion of the findings on increased imports, threat of serious injury and causality, since the conditions for imposing <mask> are not necessarily met category by category.


Consequently, since the machines in question do not comply with the EHSRs and present risks to human health and safety, it must be held that the Commission was justified, pursuant to Article 11 of Directive 2006/42 and without infringing the principle of proportionality, in concluding that the <mask>, namely the prohibition of placing on the market and the withdrawal from the market of the products at issue, adopted by the SWEA, were in themselves justified.


Regarding the objectives of the MCV Decision, its recital 4 refers to the shortcomings justifying recourse to the <mask> of Articles 37 and 38 of the Act of Accession. Whilst noting the efforts made to complete Romania’s preparation for EU membership, that recital reveals that the Commission identified in its Report of 26 September 2006  ‘remaining issues’ concerning, in particular, the accountability and efficiency of the judicial system and law enforcement bodies. Further progress was deemed necessary in order to ensure their capacity ‘to implement and apply the measures adopted to establish the internal market and the area of freedom, security and justice’. After recalling in recital 5 that the measures in Articles 37 and 38 of the Act of Accession could be taken in case of ‘imminent risks’, the Commission considered such risks to be present. Recital 6 thus explains that the ‘remaining issues’ concerned with accountability and efficiency of the judicial and law enforcement system warrant the establishment of the MCV in order to assess the progress of Romania in addressing specific benchmarks in the field of judicial reform and the fight against corruption.


Contrary to the situation that prevailed in the context of the provisional <mask>, the contested regulation established specific tariff-rate quotas per country in respect of countries with a significant supplying interest (that is to say, countries with a share of more than 5% of imports for the product category concerned). A ‘residual’ tariff-rate quota was also established in respect of the other exporting countries to the territory of the European Union. The Commission equally considered that when a supplying country had exhausted its specific tariff-rate quota, it should be allowed to have access to the residual tariff-rate quota, in order to ensure the maintenance of traditional trade flows but also to avoid that, as the case may be, parts of the residual tariff-rate quota would remain unused.


In the present case, it follows from recitals 27 to 42 and 61 to 64, 66 to 68, 76 and 77 of the contested regulation that the Commission used Eurostat figures relating to imports from Cambodia, and thus from Cambodian exporting companies, in absolute terms and in terms of market share, as well as their prices, and explicitly linked the increase in those imports to the serious difficulties caused to the EU industry, which, in the Commission’s view, justified the adoption of <mask>. The exporting member of the CRF that was expressly named in the contested regulation and the exporting members of the CRF identified by the Commission and concerned by the sampling and investigation procedure are thus individually concerned by the contested regulation given that the safeguard measures were imposed on the basis of information relating to their business activities.


Where a decision 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 might be individually concerned by that measure inasmuch as they form part of a limited class of traders and that that can be the case particularly when the decision alters rights acquired by those persons prior to its adoption (see judgment of 27 February 2014, Stichting Woonpunt and Others v Commission, C‑132/12 P,EU:C:2014:100, paragraph 59 and the case-law cited). In the present case, the Kingdom of Cambodia is part of a closed class, in so far as it is a beneficiary country of the EBA regime, identified in the contested regulation, which played an active part in the procedure leading to the adoption of the contested regulation, and in respect of which the consequences of the <mask> were taken into account for the purpose of setting the Common Customs Tariff duties.


In that regard, it should be noted that acts imposing <mask> are liable to be of direct and individual concern to natural or legal persons who can demonstrate that they have been identified in the acts of the Commission or concerned by the preparatory investigations (see, by analogy, judgments of 21 February 1984, Allied Corporation and Others v Commission, 239/82 and 275/82, EU:C:1984:68, paragraphs 10 to 12; see, also, judgments of 28 February 2019, Council v Growth Energy and Renewable Fuels Association, C‑465/16 P, EU:C:2019:155, paragraphs 73 and 79 and the case-law cited, and of 13 September 2013, Huvis v Council, T‑536/08, not published, EU:T:2013:432, paragraph 25 and the case-law cited).


These measures may take the form of temporary suspension of the application of relevant provisions and decisions in the relations between Bulgaria or Romania and any other Member State or Member States, without prejudice to the continuation of close judicial cooperation. The safeguard clause may be invoked even before accession on the basis of the monitoring findings and the measures adopted shall enter into force as of the first day of accession unless they provide for a later date. The measures shall be maintained no longer than strictly necessary and, in any case, shall be lifted when the shortcomings are remedied. They may however be applied beyond the period specified in the first paragraph as long as these shortcomings persist. In response to progress made by the new Member State concerned in rectifying the identified shortcomings, the Commission may adapt the measures as appropriate after consulting the Member States. The Commission shall inform the Council in good time before revoking the <mask>, and it shall take duly into account any observations of the Council in this respect.’


In the present case, the contested regulation leaves no discretion to the competent authorities of the Member State in the implementation of <mask> (see, by analogy, judgments of 3 December 2020, Changmao Biochemical Engineering v Distillerie Bonollo and Others, C‑461/18 P, EU:C:2020:979, paragraph 59, and of 12 December 2014, Crown Equipment (Suzhou) and Crown Gabelstapler v Conseil, T‑643/11, EU:T:2014:1076, paragraph 28 (not published)), since the competent authorities are required to levy an additional 25% duty once the tariff-rate quotas have been exhausted (see Articles 49 to 54 of Commission Implementing Regulation (EU) 2015/2447 of 24 November 2015 laying down detailed rules for implementing certain provisions of Regulation (EU) No 952/2013 of the European Parliament and of the Council laying down the Union Customs Code (OJ 2015 L 343, p. 558) and Articles 1 and 3 of the contested regulation).


Since the contested regulation imposes <mask> of general application, it must be held that, as the Commission rightly submits, any person prepared and able to export the product concerned to the European Union may have that regulation applied to it. However, that does not mean that, in some circumstances, certain natural or legal persons cannot be individually concerned by that regulation and, as such, fall within a defined class.


By relying on WTO case-law, which emphasises the importance of intermediate trends in reaching the conclusion that imports increased within the meaning of Article 2.1 of the WTO Agreement on Safeguards, the applicant submits that, where there are found to be mixed trends between different product categories comprising a single product concerned, there is nothing to support the conclusion that imports of the single product concerned increased and that <mask> are legally justified. In that context, in the light of the specific features of the present case, the applicant disputes the relevance of the Commission’s claims that WTO case-law contradicts the applicant’s position.


The Commission’s argument that the legal situation of the Kingdom of Cambodia is not directly affected, given that the <mask> introduced by the contested regulation apply only to importers established in the European Union, must also be rejected. While it is true that the contested regulation lays down measures that apply primarily to those importers, those measures directly affect the Cambodian State, whose economic activity is limited by the application of those measures to it, as stated in paragraphs 57, 59 and 61 above.