1 By its appeal, Airoldi Metalli SpA seeks to have set aside the order of the General Court of the European Union of 2 May 2022, Airoldi Metalli v Commission (T‑328/21, EU:T:2022:277) (‘the order under appeal’), by which the General Court dismissed its action for annulment of Commission Implementing Regulation (EU) 2021/546 of 29 March 2021 imposing a definitive anti-dumping duty and definitively collecting the provisional duty imposed on imports of aluminium extrusions originating in the People’s Republic of China (OJ 2021 L 109, p. 1) (‘the regulation at issue’). Legal context
2 Article 5 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1) (the ‘Customs Code’), entitled ‘Definitions’, provides: ‘For the purposes of the [Customs] Code, the following definitions shall apply: … (5) “economic operator” means a person who, in the course of his or her business, is involved in activities covered by the customs legislation; … (18) “customs debt” means the obligation on a person to pay the amount of import or export duty which applies to specific goods under the customs legislation in force; …’
3 According to Article 6(1) and (4) of that code: ‘1. All exchanges of information, such as declarations, applications or decisions, between customs authorities and between economic operators and customs authorities, and the storage of such information, as required under the customs legislation, shall be made using electronic data-processing techniques. … 4. By way of derogation from paragraph 1, the [European] Commission may adopt in exceptional cases decisions allowing one or several Member States to use means for the exchange and storage of information other than electronic data-processing techniques. Such a decision on a derogation shall be justified by the specific situation of the Member State requesting it and the derogation shall be granted for a specific period of time. The derogation shall be reviewed periodically and may be extended for further specific periods of time upon further application by the Member State to which it is addressed. It shall be revoked where no longer justified. The derogation shall not affect the exchange of information between the Member State to which it is addressed and other Member States nor the exchange and storage of information in other Member States for the purpose of the application of the customs legislation.’
4 Article 44 of the code provides: ‘1. Any person shall have the right to appeal against any decision taken by the customs authorities relating to the application of the customs legislation which concerns him or her directly and individually. Any person who has applied to the customs authorities for a decision and has not obtained a decision on that application within the time limits referred to in Article 22(3) shall also be entitled to exercise the right of appeal. 2. The right of appeal may be exercised in at least two steps: (a) initially, before the customs authorities or a judicial authority or other body designated for that purpose by the Member States; (b) subsequently, before a higher independent body, which may be a judicial authority or an equivalent specialised body, according to the provisions in force in the Member States. 3. The appeal shall be lodged in the Member State where the decision was taken or was applied for. 4. Member States shall ensure that the appeals procedure enables the prompt confirmation or correction of decisions taken by the customs authorities.’
5 Article 46(1) to (4) of that code provides: ‘1. The customs authorities may carry out any customs controls they deem necessary. Customs controls may in particular consist of examining goods, taking samples, verifying the accuracy and completeness of the information given in a declaration or notification and the existence, authenticity, accuracy and validity of documents, examining the accounts of economic operators and other records, inspecting means of transport, inspecting luggage and other goods carried by or on persons and carrying out official enquiries and other similar acts. 2. Customs controls, other than random checks, shall primarily be based on risk analysis using electronic data-processing techniques, with the purpose of identifying and evaluating the risks and developing the necessary counter-measures, on the basis of criteria developed at national, [European] Union and, where available, international level. 3. Customs controls shall be performed within a common risk management framework, based upon the exchange of risk information and risk analysis results between customs administrations and establishing common risk criteria and standards, control measures and priority control areas. Controls based upon such information and criteria shall be carried out without prejudice to other controls carried out in accordance with paragraph 1 or with other provisions in force. 4. Customs authorities shall undertake risk management to differentiate between the levels of risk associated with goods subject to customs control or supervision and to determine whether the goods will be subject to specific customs controls, and if so, where. The risk management shall include activities such as collecting data and information, analysing and assessing risk, prescribing and taking action and regularly monitoring and reviewing that process and its outcomes, based on international, Union and national sources and strategies.’
6 Under Article 48 of the Customs Code: ‘For the purpose of customs controls, the customs authorities may verify the accuracy and completeness of the information given in a customs declaration, temporary storage declaration, entry summary declaration, exit summary declaration, re-export declaration or re-export notification, and the existence, authenticity, accuracy and validity of any supporting document and may examine the accounts of the declarant and other records relating to the operations in respect of the goods in question or to prior or subsequent commercial operations involving those goods after having released them. Those authorities may also examine such goods and/or take samples where it is still possible for them to do so. Such controls may be carried out at the premises of the holder of the goods or of the holder’s representative, of any other person directly or indirectly involved in those operations in a business capacity or of any other person in possession of those documents and data for business purposes.’
7 Article 79(1) and (2) of the code provides: ‘1. For goods liable to import duty, a customs debt on import shall be incurred through non-compliance with any of the following: (a) one of the obligations laid down in the customs legislation concerning the introduction of non-Union goods into the customs territory of the Union, their removal from customs supervision, or the movement, processing, storage, temporary storage, temporary admission or disposal of such goods within that territory; (b) one of the obligations laid down in the customs legislation concerning the end-use of goods within the customs territory of the Union; (c) a condition governing the placing of non-Union goods under a customs procedure or the granting, by virtue of the end-use of the goods, of duty exemption or a reduced rate of import duty. 2. The time at which the customs debt is incurred shall be either of the following: (a) the moment when the obligation the non-fulfilment of which gives rise to the customs debt is not met or ceases to be met; (b) the moment when a customs declaration is accepted for the placing of goods under a customs procedure where it is established subsequently that a condition governing the placing of the goods under that procedure or the granting of a duty exemption or a reduced rate of import duty by virtue of the end-use of the goods was not in fact fulfilled.’
8 Under Article 87 of the Customs Code: ‘1. A customs debt shall be incurred at the place where the customs declaration or the re-export declaration referred to in Articles 77, 78 and 81 is lodged. In all other cases, the place where a customs debt is incurred shall be the place where the events from which it arises occur. If it is not possible to determine that place, the customs debt shall be incurred at the place where the customs authorities conclude that the goods are in a situation in which a customs debt is incurred. 2. If the goods have been placed under a customs procedure which has not been discharged or when a temporary storage did not end properly, and the place where the customs debt is incurred cannot be determined pursuant to the second or third subparagraphs of paragraph 1 within a specific time limit, the customs debt shall be incurred at the place where the goods were either placed under the procedure concerned or were introduced into the customs territory of the Union under that procedure or were in temporary storage. 3. Where the information available to the customs authorities enables them to establish that the customs debt may have been incurred in several places, the customs debt shall be deemed to have been incurred at the place where it was first incurred. 4. If a customs authority establishes that a customs debt has been incurred under Article 79 or Article 82 in another Member State and the amount of import or export duty corresponding to that debt is lower than EUR 10 000, the customs debt shall be deemed to have been incurred in the Member State where the finding was made.’
9 Article 101(1) and (2) of that code provides: ‘1. The amount of import or export duty payable shall be determined by the customs authorities responsible for the place where the customs debt is incurred, or is deemed to have been incurred in accordance with Article 87, as soon as they have the necessary information. 2. Without prejudice to Article 48, the customs authorities may accept the amount of import or export duty payable determined by the declarant.’
10 Under Article 102 of the Customs Code: ‘1. The customs debt shall be notified to the debtor in the form prescribed at the place where the customs debt is incurred, or is deemed to have been incurred in accordance with Article 87. The notification referred to in the first subparagraph shall not be made in any of the following cases: (a) where, pending a final determination of the amount of import or export duty, a provisional commercial policy measure taking the form of a duty has been imposed; (b) where the amount of import or export duty payable exceeds that determined on the basis of a decision made in accordance with Article 33; (c) where the original decision not to notify the customs debt or to notify it with an amount of import or export duty at a figure less than the amount of import or export duty payable was taken on the basis of general provisions invalidated at a later date by a court decision; (d) where the customs authorities are exempted under the customs legislation from notification of the customs debt. 2. Where the amount of import or export duty payable is equal to the amount entered in the customs declaration, release of the goods by the customs authorities shall be equivalent to notifying the debtor of the customs debt. 3. Where paragraph 2 does not apply, the customs debt shall be notified to the debtor by the customs authorities when they are in a position to determine the amount of import or export duty payable and take a decision thereon. However, where the notification of the customs debt would prejudice a criminal investigation, the customs authorities may defer that notification until such time as it no longer prejudices the criminal investigation. 4. Provided that payment has been guaranteed, the customs debt corresponding to the total amount of import or export duty relating to all the goods released to one and the same person during a period fixed by the customs authorities may be notified at the end of that period. The period fixed by the customs authorities shall not exceed 31 days.’
11 Article 103 of that code provides: ‘1. No customs debt shall be notified to the debtor after the expiry of a period of three years from the date on which the customs debt was incurred. 2. Where the customs debt is incurred as the result of an act which, at the time it was committed, was liable to give rise to criminal court proceedings, the three-year period laid down in paragraph 1 shall be extended to a period of a minimum of five years and a maximum of 10 years in accordance with national law. 3. The periods laid down in paragraphs 1 and 2 shall be suspended where: (a) an appeal is lodged in accordance with Article 44; such suspension shall apply from the date on which the appeal is lodged and shall last for the duration of the appeal proceedings; or (b) the customs authorities communicate to the debtor, in accordance with Article 22(6), the grounds on which they intend to notify the customs debt; such suspension shall apply from the date of that communication until the end of the period within which the debtor is given the opportunity to express his or her point of view. 4. Where a customs debt is reinstated pursuant to Article 116(7), the periods laid down in paragraphs 1 and 2 shall be considered as suspended from the date on which the application for repayment or remission was submitted in accordance with Article 121, until the date on which the decision on the repayment or remission was taken.’
12 According to Article 104(1) of that code: ‘The customs authorities referred to in Article 101 shall enter in their accounts, in accordance with the national legislation, the amount of import or export duty payable as determined in accordance with that Article. The first subparagraph shall not apply in cases referred to in the second subparagraph of Article 102(1).’
13 Article 172(1) of that code is worded as follows: ‘Customs declarations which comply with the conditions laid down in this Chapter shall be accepted by the customs authorities immediately, provided that the goods to which they refer have been presented to customs.’
14 Under Article 188 of that code: ‘The customs authorities may, for the purpose of verifying the accuracy of the particulars contained in a customs declaration which has been accepted: (a) examine the declaration and the supporting documents; (b) require the declarant to provide other documents; (c) examine the goods; (d) take samples for analysis or for detailed examination of the goods.’
15 The first subparagraph of Article 194(1) of the code provides: ‘Where the conditions for placing the goods under the procedure concerned are fulfilled and provided that any restriction has been applied and the goods are not subject to any prohibition, the customs authorities shall release the goods as soon as the particulars in the customs declaration have been verified or are accepted without verification.’
16 Article 14(5) of Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21), as amended by Regulation (EU) 2018/825 of the European Parliament and of the Council of 30 May 2018 (OJ 2018 L 143, p. 1) (‘Regulation 2016/1036’), provides: ‘As of the initiation of the investigation and having informed the Member States in due time, the Commission may direct the customs authorities to take the appropriate steps to register imports, so that measures may subsequently be applied against those imports from the date of such registration. Imports shall be made subject to registration following a request, from the Union industry, which contains sufficient evidence to justify such action. Imports may also be made subject to registration on the Commission’s own initiative. Registration shall be introduced by Commission regulation. Such regulation shall specify the purpose of the action and, if appropriate, the estimated amount of possible future liability. Imports shall not be made subject to registration for a period longer than nine months.’
17 Article 17 of that regulation provides: ‘1. In cases where the number of Union producers, exporters or importers, types of product or transactions is large, the investigation may be limited to a reasonable number of parties, products or transactions by using samples which are statistically valid, on the basis of information available at the time of the selection, or to the largest representative volume of production, sales or exports which can reasonably be investigated within the time available. 2. The final selection of parties, types of products or transactions made under these sampling provisions shall rest with the Commission. However, in order to enable the selection of a representative sample preference shall be given to choosing a sample in consultation with, and with the consent of, the parties concerned, provided that such parties make themselves known and make sufficient information available within one week of initiation of the investigation. 3. In cases where the investigation has been limited in accordance with this Article, an individual margin of dumping shall, nevertheless, be calculated for any exporter or producer not initially selected who submits the necessary information within the time limits provided for in this Regulation, except where the number of exporters or producers is so large that individual examinations would be unduly burdensome and would prevent completion of the investigation in good time. 4. Where it is decided to sample and there is a degree of non-cooperation by some or all of the parties selected which is likely to materially affect the outcome of the investigation, a new sample may be selected. However, if a material degree of non-cooperation persists or there is insufficient time to select a new sample, the relevant provisions of Article 18 shall apply.’ Background to the dispute
18 The background to the dispute, set out in paragraphs 2 to 9 of the order at issue, may be summarised as follows.
19 On 14 February 2020, following a complaint lodged by an association representing European producers of aluminium extrusions (‘the product concerned’), the Commission published a notice of initiation of an anti-dumping proceeding concerning imports of aluminium extrusions originating in the People’s Republic of China (OJ 2020 C 51, p. 26), pursuant to Article 5 of Regulation 2016/1036.
20 The appellant, which is the importer of that product, was included in the sample of unrelated importers on which the Commission relied, in accordance with Article 17 of Regulation 2016/1036, for the purposes of the anti-dumping proceedings and investigation. It submitted its observations on several occasions in the course of the proceedings, in particular in response to requests from the Commission. It was also heard by the latter on 29 June 2020 and, in addition, it requested that the proceedings be suspended on account of the health crisis, but the Commission did not accede to that request.
21 On 23 June 2020, the complainant association submitted a request for registration of the product concerned pursuant to Article 14(5) of Regulation 2016/1036, so that anti-dumping duties could subsequently be applied to imports of that product from the date of that registration. On 6 July 2020, the appellant informed the Commission of its opposition to that request for registration.
22 On 21 August 2020, the Commission adopted Implementing Regulation (EU) 2020/1215 making imports of aluminium extrusions in the People’s Republic of China subject to registration (OJ 2020 L 275, p. 16). That regulation was challenged before the General Court by both the appellant in the context of Case T‑611/20 and by two Chinese companies, namely Guangdong Haomei New Materials Co. Ltd and Guangdong King Metal Light Alloy Technology Co. Ltd, which are exporting producers of the product concerned in the context of Case T‑604/20. The Court dismissed the first action by order of 28 September 2021, Airoldi Metalli v Commission (T‑611/20, EU:T:2021:641), on the ground that the appellant had no interest in bringing proceedings against that regulation. In addition, it was held that there was no longer any need to adjudicate on the second action since both the Chinese applicant companies no longer had any interest in bringing proceedings against that regulation (order of 22 December 2021, Guangdong Haomei New Materials Co. Ltd and Guangdong King Metal Light Alloy Technology v Commission , T‑604/20, EU:T:2021:952).
23 Following further observations submitted by, in particular, the appellant, the Commission adopted, on 12 October 2020, Implementing Regulation (EU) 2020/1428 imposing a provisional anti-dumping duty on imports of aluminium extrusions originating in the People’s Republic of China (OJ 2020 L 336, p. 8). That regulation was also challenged before the General Court both by the appellant in the context of Case T‑744/20 and by Guangdong Haomei New Materials and Guangdong King Metal Light Alloy Technology in the context of Case T‑725/20. The General Court dismissed both those actions, primarily on the ground that that regulation is not an act open to challenge (orders of 30 November 2021, Airoldi Metalli v Commission , T‑744/20, EU:T:2021:853, and of 22 December 2021, Guangdong Haomei New Materials and Guangdong King Metal Light Alloy Technology v Commission , T‑725/20, EU:T:2021:957).
24 In the course of the next stages of the anti-dumping proceedings, the appellant submitted written and oral observations on several occasions.
25 On 29 March 2021, the Commission adopted the regulation at issue, which provides as follows: ‘ Article 1 1. A definitive anti-dumping duty is imposed on imports of [the product concerned]. 2. The rate of the definitive anti-dumping duty applicable to the net, free-at-Union-frontier price, before duty, of the products described in paragraph 1 and produced by the companies listed below, shall be as follows: Company Duty rate (%) TARIC additional code Guangdong Haomei New Materials Co., Ltd. 21.2 C562 Guangdong King Metal Light Alloy Technology Co., Ltd. 21.2 C563 Press Metal International Ltd. 25.0. C564 Press Metal International Technology Ltd. 25.0 C565 Other cooperating companies listed in Annex 22.1 All other companies 32.1 C999 3. The application of the individual duty rates specified for the companies mentioned in paragraph 2 shall be conditional upon presentation to the Member States’ customs authorities of a valid commercial invoice, on which shall appear a declaration dated and signed by an official of the entity issuing such invoice, identified by name and function, drafted as follows: “ I, the undersigned, certify that the (volume) of (product concerned) sold for export to the European Union covered by this invoice was manufactured by (company name and address) (TARIC additional code) in [country concerned]. I declare that the information provided in this invoice is complete and correct. ” If no such invoice is presented, the duty applicable to all other companies shall apply. … Article 2 The amounts secured by way of the provisional anti-dumping duty under Implementing Regulation (EU) 2020/1428 shall be definitively collected. The amounts secured in excess of the definitive rates of the anti-dumping duty shall be released. Article 3 No definitive anti-dumping duty will be levied retroactively for registered imports. Data collected in accordance with Article 1 of Implementing Regulation (EU) 2020/1215 shall no longer be kept.’ The procedure before the General Court and the order under appeal
26 By application lodged at the Registry of the General Court on 9 June 2021, the appellant brought an action for annulment of the regulation at issue.
27 By separate document lodged at the Registry of the General Court on 30 September 2021, the Commission raised an objection of inadmissibility.
28 By the order under appeal, the General Court dismissed that action as inadmissible. For the reasons set out in paragraphs 17 to 35 of the order under appeal, the Court held that since the regulation at issue entails implementing measures with regard to the appellant, within the meaning of the fourth paragraph of Article 263 TFEU, the latter must show that that regulation is of individual concern to it in order for its action to be declared admissible. For the reasons set out in paragraphs 36 to 56 of that order, the General Court considered that the appellant was not individually concerned by that regulation. It ordered the appellant to pay the costs. The procedure before the Court of Justice and the forms of order sought by the parties to the appeal
29 The appellant claims that the Court should: - declare its appeal admissible; - set aside the order under appeal and declare its action admissible; - refer the case back to the General Court for an examination of its action as to the substance; and - order the Commission to bear the costs of the present appeal and of the proceedings at first instance.
30 The Commission contends that the Court should: - dismiss the appeal as unfounded; and - order the appellant to pay the costs. The appeal
31 In support of the appeal, the appellant relies on two grounds of appeal. The first ground of appeal is based on an error in law in the interpretation of the final limb of the fourth paragraph of Article 263 TFEU, erroneous qualification of the facts and distortion of evidence. The second ground of appeal alleges an error in law in the interpretation of the fourth paragraph of Article 263 TFEU and erroneous qualification of facts. The first ground of appeal Arguments of the parties
32 By its first ground of appeal, the appellant complains that the General Court erred in law, in paragraphs 19 to 35 of the order under appeal, in interpreting the notion of ‘implementing measures’ in the fourth paragraph of Article 263 TFEU and in qualifying the facts relating to that notion, and distorted the evidence submitted to support its argument that the regulation at issue does not comprise implementing measures.
33 As far as concerns the notion of ‘implementing measures’, the appellant claims that, by finding that the mere existence of a national authority responsible for controlling the application of a directly applicable EU act is tantamount to a need for implementing measures, the General Court unduly restricted the application of the condition, laid down in the final limb of the fourth paragraph of Article 263 TFEU, according to which the regulatory act at issue does not entail implementing measures. Such an interpretation amounts to accepting that any EU regulatory act which is directly applicable in the Member States entails implementing measures because a national authority responsible for controlling the application of that kind of act always exists.
34 The appellant maintains that, in order to establish whether an EU regulatory act does not entail implementing measures, it must be determined whether it is necessary, for the authorities of the Member States, to adopt an act in order to confer legal effects to that regulatory act and contribute actively to its application and implementation. The mere fact that the national authority can decide ex post to open inspection proceedings and/or controls of that act cannot be regarded as an implementing measure.
35 As regards the alleged erroneous qualification of the facts and distortion of the evidence, the appellant claims that the General Court did not take into account the fact that the regulation at issue applies automatically in the legal order of the Member States and does not require any involvement of the customs authorities.
36 Pursuant to Article 5(18) and Article 79 of the Customs Code, a customs debt on import is incurred through non-compliance with one of the obligations laid down in the applicable customs legislation. Liability for a customs debt is automatic since the relevant point in time at which it is incurred is the moment at which a debtor files its customs form or the moment at which the goods concerned were introduced into the customs territory of the European Union where the debtor failed to comply with all the customs formalities. Those points in time are also taken into account in the calculation of the three-year limitation period, laid down in Article 103 of the Customs Code, which applies to post-import controls and audits performed by the customs authorities. If it were necessary for the customs authorities to adopt an implementing measure, that liability under customs law would arise only upon adoption of that measure.
37 In addition, Articles 101, 102 and 104 of the Customs Code cannot be read in isolation from the core principles of communication by electronic means, laid down in Article 6(1) and (4) of that code, and the controls based on risk assessment methods performed by customs authorities, laid down in Article 46 of that code. Unless those authorities decide to carry out a control of a specific customs declaration pursuant to Articles 46, 48 and 188 of that code, the amount of customs duties and their payment are determined by the importer, without involvement of the custom authorities since declarations filled out by the importer are considered to be immediately accepted by the customs authorities pursuant to Article 172(1) of the Customs Code. Controls by the customs authorities are either random or carried out on the basis of a risk assessment which takes into consideration the fact that that amount is determined by the importer.
38 Contrary to the judgment of 18 October 2018, Internacional de Productos Metálicos v Commission (C‑145/17 P, EU:C:2018:839, paragraph 52), which requires the General Court to carry out its assessment by reference to the position of the person invoking the right to bring proceedings, the General Court did not take account of the fact that, in the present case, the customs authorities did not have any active role, carry out any control or send any specific notification of anti-dumping duties. Therefore, the General Court failed to examine the evidence submitted by the appellant in this respect.
39 The appellant claims that the judgment of 10 December 2015, Kyocera Mita Europe v Commission (C‑553/14 P, EU:C:2015:805), is irrelevant in the present case since the requirement that the customs authorities enter into the accounts the customs debt and expressly communicate it to the importer was superseded by the Customs Code, a characteristic of which is the automatic acceptance of debtors’ declarations.
40 The Commission disputes the appellant’s line of argument. Findings of the Court
41 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 (judgment of 18 October 2018, Internacional de Productos Metálicos v Commission , C‑145/17 P, EU:C:2018:839, paragraph 32 and the case-law cited).
42 The expression ‘which … does not entail implementing measures’, within the meaning of the final limb of the fourth paragraph of Article 263 TFEU, 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 EU 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 (judgment of 18 October 2018, Internacional de Productos Metálicos v Commission , C‑145/17 P, EU:C:2018:839, paragraph 49 and the case-law cited).
43 By contrast, where a regulatory act entails implementing measures, judicial review of compliance with the EU 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 EU judicature are protected against the application to them of such an act by the ability to challenge the implementing measures which the act entails (judgment of 18 October 2018, Internacional de Productos Metálicos v Commission , C‑145/17 P, EU:C:2018:839, paragraph 50 and the case-law cited).
44 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 EU 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 (judgment of 18 October 2018, Internacional de Productos Metálicos v Commission , C‑145/17 P, EU:C:2018:839, paragraph 51 and the case-law cited).
45 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 (judgment of 18 October 2018, Internacional de Productos Metálicos v Commission , C‑145/17 P, EU:C:2018:839, paragraph 52 and the case-law cited).
46 In the present case, in paragraph 30 of the order under appeal, which was not disputed by the appellant in this appeal, the General Court described the process for determining the amount of the anti-dumping duties to be paid by importers, provided for in the Customs Code, as meaning that it comprises the entry into the electronic customs system - which is the sole responsibility of the national customs authorities - of the customs declaration which entails, inter alia, the importer’s calculation of the amount of duty and, subsequently, the generation by that system of an acceptance of the declaration by allocating a release code which allows the goods concerned to be released for free circulation.
47 The General Court rightly set out in paragraph 25 of the order under appeal, first of all, that Article 101(1) of the Customs Code provides that the amount of import duty payable is determined by the customs authorities responsible for the place where the customs debt was incurred, without any exception for definitive anti-dumping duties being provided for in that regard. Next, pursuant to Article 104(1) of that code, the customs authorities referred to in Article 101 of that code are to enter in the accounts, in accordance with national legislation, the amount of import or export duty payable determined in accordance with that article. Lastly, Article 102 of the Customs Code provides, in paragraph 1 thereof, that the customs debt is to be notified to the debtor by the customs authorities in the form prescribed at the place where the customs debt is incurred, and states, in paragraph 2 thereof, that where the amount of duty payable is equal to the amount entered in the customs declaration, release of the goods by the customs authorities is equivalent to notifying the debtor of the customs debt.
48 The General Court rightly inferred therefrom, in paragraph 26 of the order under appeal, that the Customs Code entails implementing measures within the meaning of the fourth paragraph of Article 263 TFEU.
49 The arguments put forward by the appellant are not such as to call into question that finding.
50 In the first place, the appellant’s argument that the General Court wrongly found that the existence of an implementing measure, within the meaning of the fourth paragraph of Article 263 TFEU, is sufficiently established since the customs authorities are competent to carry out checks on declarations lodged by importers, is based on a misreading of the order under appeal.
51 In paragraph 31 of the order under appeal, the General Court ruled that the absence of control of the appellant’s goods is irrelevant. Moreover, as is apparent from paragraph 25 of the order under appeal, the General Court referred to Article 101(1) and Article 102 of the Customs Code, according to which the customs authorities responsible for the place where the customs debt is incurred, or is deemed to have been incurred in accordance with Article 87 of that code, determine the amount of import or export duty payable and notify debtors thereof even when they do not carry out checks.
52 In the second place, the argument that Article 79 of the Customs Code, which defines the points in time at which the debt is incurred in the event of non-compliance with customs obligations, demonstrates the absence of implementing measures cannot succeed. Even in the situations covered by that provision, the fact remains that, under Article 101(1) and Article 102 of that code, it is the customs authorities responsible for the place where the customs debt is incurred, or is deemed to have been incurred in accordance with Article 87 of that code, which adopt implementing measures within the meaning of the fourth paragraph of Article 263 TFEU.
53 In the third place, the appellant complains, in essence, that the General Court failed to have regard to the fact that, under Article 172(1) of the Customs Code, declarations made by debtors are immediately accepted by the customs authorities by means of an electronic system provided for in Article 6 of that code and that, under Articles 46, 48 and 188 of that code, controls may be carried out after those declarations have been accepted.
54 It is apparent from Article 194(1) of the Customs Code that the customs authorities are to release the goods as soon as the particulars in the customs declaration have been verified or accepted without verification.
55 Therefore, even where the debtor’s declaration is accepted immediately by the customs authorities, they are still required to grant an ‘implementing measure’, within the meaning of Article 263 TFEU, which, under Article 102(2) of that code, is equivalent to a decision notifying the debtor of the customs debt. The fact that, under Article 48 of that code, the customs authorities may decide not to verify the accuracy and completeness of the information provided after release and that, under Article 6 of that code, it is an electronic system which generates an acceptance of the declaration by allocating a release code which allows the goods concerned to be released does not deprive that decision of its ‘implementing measure’ nature, within the meaning of Article 263 TFEU.
56 As the General Court correctly pointed out in paragraph 25 of the order under appeal, the Customs Code provides for measures with regard to importers liable to pay those duties consisting in the communication or notification to the importer of the customs debt to which those duties give rise. The regulation at issue thus entails implementing measures, the invalidity of which may be raised before the national courts and cause the latter to request a preliminary ruling from the Court of Justice, pursuant to Article 267 TFEU. Thus, contrary to what the appellant claims, the General Court did not err in law in interpreting and applying the final limb of the fourth paragraph of Article 263 TFEU.
57 It follows that the first ground of appeal must be rejected as unfounded. The second ground of appeal Arguments of the parties
58 By its second ground of appeal, the appellant complains that the General Court, in paragraphs 39 to 56 of the order under appeal, misinterpreted the fourth paragraph of Article 263 TFEU and incorrectly qualified the facts in holding that it was not individually concerned by the regulation at issue and that that action was, consequently, also inadmissible on that ground.
59 The appellant claims that it must remain possible to prove the existence of a ‘situation peculiar’ to an individual importer by means other than those referred to in the judgment of 15 October 1998, Industrie des poudres sphériques v Council (T‑2/95, EU:T:1998:242, paragraphs 52 and 53).
60 In the first place, the appellant claims to have demonstrated, contrary to what the General Court stated in paragraph 52 of the order under appeal, that it suffered economic repercussions as a result of the adoption of the regulation at issue. Indeed, 53% of its business depends on the exports of one of the Chinese exporting producers of the product concerned.
61 Its situation is dependent on high-grade aluminium that is not available in the EU market, but which is available from the Chinese exporters designated in the regulation at issue. Accordingly, the fact that the appellant is not the largest importer of Chinese aluminium, or that 47% of its business is not based on high-grade aluminium, is not decisive. For 53% of the appellant’s business, the anti-dumping duty has a direct and individual effect which, taken in isolation or in conjunction with the appellant’s active participation in the anti-dumping proceedings, means that the appellant must be regarded as fulfilling the condition that it must be individually concerned by the regulation at issue. However, in paragraph 52 of the order under appeal, the General Court criticised the appellant for failing to provide further details regarding economic repercussions.
62 In the second place, the General Court failed to take into consideration the fact that the appellant is mentioned individually in 56 of the 385 recitals of the regulation at issue and that it influenced heavily, in particular, the shaping of that regulation, the analysis and calculation of the injury and the data relating to the alleged injury caused by imports of the product concerned.
63 The appellant states that, thanks to its participation in the anti-dumping proceedings, the Commission considered that the vast majority of allegedly injurious imports originating from China under CN Code 7610 90 90 were ‘products not concerned by the investigation’, took account of the effects of the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union, reduced the volume of Chinese imports during the investigation period from 310 000 tonnes to 150 000 tonnes at the definitive stage, recalculated the market share of Chinese imports, adjusting it from 9.6% to 5.0%, and reassessed the market share of European industry from 81.1% to 85.4%. Thus, the appellant’s participation led to a change in the assessment of the scope of the dumping measures and the injury they caused.
64 In addition, the General Court did not take into account the fact that, in its observations on the objection of inadmissibility and in Annexes AA.6 to AA.10 thereto, the appellant produced evidence which it made clear that it was dependent on imports from an exporter mentioned in the regulation at issue, namely Guangdong Haomei New Materials and Guangdong King Metal Light Alloy Technology.
65 Moreover, the General Court erred in law by considering all the factors referred to in paragraphs 39 to 56 of the order under appeal separately from one another. The General Court should have performed a holistic examination and reading of such factors and concluded that, taken together, they point to the fact that the appellant is in a peculiar situation as opposed to other importers of the product concerned.
66 The Commission disputes that line of argument. Findings of the Court
67 It is apparent from the settled case-law of the Court that although regulations imposing anti-dumping duties in respect of a product are legislative in nature and scope, in that they apply to all the economic operators concerned, it is not inconceivable that some of them may be of direct and individual concern (judgment of 3 December 2020, Changmao Biochemical Engineering v Distillerie Bonollo and Others , C‑461/18 P, EU:C:2020:979, paragraph 63).
68 Thus, in its case-law, the Court has identified certain categories of economic operators that may be individually concerned by a regulation imposing an anti-dumping duty, without prejudice to the possibility that other operators may be individually concerned by reason of certain attributes which are peculiar to them and which differentiate them from all other persons (judgment of 10 March 2021, Von Aschenbach & Voss , C‑708/19, EU:C:2021:190, paragraph 40).
69 The following may be individually concerned by a regulation imposing an anti-dumping duty: 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; second, 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; and, third, 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 EU market and where the anti-dumping duty itself has been calculated on the basis of those resale prices (judgment of 10 March 2021, Von Aschenbach & Voss , C‑708/19, EU:C:2021:190, paragraph 41).
70 Therefore, it should be noted that the status of importer cannot, on its own, be sufficient to support the view that an importer is individually concerned by a regulation imposing an anti-dumping duty. Even if associated with exporters of the product in question, an importer is individually concerned only if it is able to prove that information relating to its business activities has been taken into account for the purpose of establishing dumping or, failing that, that it has other attributes which are peculiar to it and which differentiate it from all other persons (judgment of 10 March 2021, Von Aschenbach & Voss , C‑708/19, EU:C:2021:190, paragraph 42).
71 In the present case, the appellant does not claim that it is an importer of the product whose resale prices were taken into account for the construction of export prices or an importer associated with exporters of the product concerned, but claims that it is individually concerned by reason of certain other circumstances which are peculiar to it and which differentiate it, particularly when taken together, from all other persons.
72 It must be noted that, in paragraphs 43 to 55 of the order under appeal, the General Court examined those circumstances.
73 As regards the appellant’s participation in the proceedings which led to the adoption of the regulation at issue, the General Court rightly held, in paragraph 43 of the order under appeal, that, if there are no other factors giving rise to a particular situation which differentiates an undertaking which took part in anti-dumping proceedings from all other economic operators, such participation does not, of itself, give rise to a right enabling the appellant to bring a direct action against that regulation.
74 As regards the fact that the appellant’s name was mentioned in the recitals of the regulation at issue, the General Court correctly held, in paragraph 44 of the order under appeal, that the right to bring a direct action against the regulation at issue cannot follow from that reference, which merely records its participation in the proceedings.
75 So far as concerns the claim that the appellant influenced the outcome of the proceedings which led to the adoption of the regulation at issue, the General Court rightly held, in paragraph 47 of the order under appeal, that such a circumstance did not reflect attributes which are peculiar to the appellant, since it is ‘too far removed from the [appellant’s] own situation and data to differentiate it from all other persons and therefore to distinguish it individually as in the case of the addressee of a decision’.
76 As regards the appellant’s claim that it suffered economic repercussions which differentiate it from all other persons since 53% of its activities depended on the exports of one of the Chinese exporting producers of the product concerned, the General Court, first, considered, in paragraph 52 of the order under appeal, without ruling on that rate, that the appellant merely claimed to have suffered economic repercussions as a result of the regulation at issue, without providing further details.
77 Next, in paragraph 53 of the order under appeal, the General Court noted that the appellant’s economic dependence on Chinese exports of the product concerned could not be established since, first, according to recital 320 of the regulation at issue, the supply of the product concerned from producers other than Chinese exporting producers is not excluded and, second, according to recitals 217 and 218 of the regulation at issue, the EU market share held by Chinese exporting producers was approximately 6% during the investigation period for the product concerned.
78 Lastly, in paragraph 55 of the order under appeal, the General Court found, first, that ‘even if the dependence alleged and the highly damaging impact of the [regulation at issue] on the [appellant’s] business were proved’, the appellant did not claim to have established that that situation would be sufficient to differentiate it from all other operators importing the product concerned and, second, that it is possible that other importers may import quantities comparable to those of the appellant, or even greater, and would be equally or more concerned than it is by the regulation at issue.
79 In the first place, it should be noted that it is apparent from that paragraph of the order under appeal that the complaint that the appellant demonstrated before the General Court that it was dependent on imports of the product concerned must be rejected as ineffective.
80 In the second place, it follows from the grounds of the order under appeal summarised in paragraphs 73 to 78 of the present judgment that, contrary to what the appellant claims, the General Court took into account the evidence the appellant invokes in its second ground of appeal, namely the fact that it participated in the proceedings which led to the adoption of the regulation at issue, that it influenced the outcome of those proceedings and that its name is mentioned in that regulation. In addition, the General Court was also able, without erring in law, to qualify those elements and find that the appellant is not individually concerned, within the meaning of the fourth paragraph of Article 263 TFEU, by the regulation at issue.
81 In the third place, the complaint that the General Court should have assessed all those factors as a whole must be rejected as ineffective.
82 Even taken together, the factors relied on by the appellant do not differentiate it from all other importers of the product concerned. Those factors are closely linked to its status as an importer of the product concerned, which is not sufficient, in itself, as is apparent from the case-law referred to in paragraph 69 of the present judgment, to differentiate it from all other importers of that product. First, as the General Court found in paragraph 55 of the order under appeal, the appellant has not established that it suffered economic repercussions which were substantially different from those suffered by the other importers of the product concerned. Second, the fact that it participated in the proceedings which led to the adoption of the regulation at issue and that its name is therefore mentioned in that regulation merely reflects its activity to mitigate the effects of the measures taken following those proceedings.
83 It follows that the second ground of appeal must be rejected as in part ineffective and in part unfounded. Costs
84 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.
85 Under Article 138(1) of those rules, applicable to proceedings on appeal by virtue of Article 184(1) thereof, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings.
86 Since the Commission has applied for costs and Airoldi Metalli has been unsuccessful, the latter must be ordered to bear its own costs and to pay those incurred by the Commission. On those grounds, the Court (Ninth Chamber) hereby: 1. Dismisses the appeal; 2. Orders Airoldi Metalli SpA to bear its own costs and to pay those incurred by the European Commission. Rossi Bonichot Rodin Delivered in open court in Luxembourg on 29 June 2023. A. Calot Escobar L.S. Rossi Registrar President of the Chamber * Language of the case: English.