Vestel Iberia v Commission (Judgment) [2015] EUECJ T-249/12 (12 March 2015)

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(Action for annulment — Customs union — Post-clearance entry in the accounts and remission of import duties — Colour television receivers originating in Turkey — Application for remission of customs duties submitted by two importers — Commission’s referral of the national authorities to a decision concerning another importer — Article 871(2) and (6) and Article 905(2) and (6) of Regulation (EEC) No 2454/93 — Lack of direct concern — Inadmissibility)

Vestel Iberia, SL, established in Madrid (Spain), represented by P. De Baere and P. Muñiz, lawyers,

Makro autoservicio mayorista SA, established in Madrid, represented by De Baere and Muñiz,

European Commission, represented by R. Lyal and L. Keppenne, acting as Agents,

APPLICATION for the annulment of Commission Decision C(2010) 22 final of 18 January 2010 finding that post-clearance entry in the accounts of import duties is justified and that remission of those duties is not justified in a particular case,

composed of S. Frimodt Nielsen (Rapporteur), President, F. Dehousse and A.M. Collins, Judges,

having regard to the written procedure and further to the hearing on 12 November 2014,

1 Article 220(2) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended (‘the Community Customs Code’), provides:

(b) the amount of duty legally owed was not entered in the accounts as a result of an error on the part of the customs authorities which could not reasonably have been detected by the person liable for payment, the latter for his part having acted in good faith and complied with all the provisions laid down by the legislation in force as regards the customs declaration.

Where the preferential status of the goods is established on the basis of a system of administrative cooperation involving the authorities of a third country, the issue of a certificate by those authorities, should it prove to be incorrect, shall constitute an error which could not reasonably have been detected within the meaning of the first subparagraph.

The issue of an incorrect certificate shall not, however, constitute an error where the certificate is based on an incorrect account of the facts provided by the exporter, except where, in particular, it is evident that the issuing authorities were aware or should have been aware that the goods did not satisfy the conditions laid down for entitlement to the preferential treatment.

The person liable may plead good faith when he can demonstrate that, during the period of the trading operations concerned, he has taken due care to ensure that all the conditions for the preferential treatment have been fulfilled.

The person liable may not, however, plead good faith if the European Commission has published a notice in the Official Journal of the European Communities, stating that there are grounds for doubt concerning the proper application of the preferential arrangements by the beneficiary country …’

‘1. Import duties … shall be repaid in so far as it is established that when they were paid the amount of such duties was not legally owed or that the amount has been entered in the accounts contrary to Article 220(2).

Import duties … shall be remitted in so far as it is established that when they were entered in the accounts the amount of such duties was not legally owed or that the amount has been entered in the accounts contrary to Article 220(2).

No repayment or remission shall be granted when the facts which led to the payment or entry in the accounts of an amount which was not legally owed are the result of deliberate action by the person concerned.

2. Import duties … shall be repaid or remitted upon submission of an application to the appropriate customs office within a period of three years from the date on which the amount of those duties was communicated to the debtor.

resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned. The situations in which this provision may be applied and the procedures to be followed to that end shall be defined in accordance with the committee procedure. Repayment or remission may be made subject to special conditions.

2. Duties shall be repaid or remitted for the reasons set out in paragraph 1 upon submission of an application to the appropriate customs office within 12 months from the date on which the amount of the duties was communicated to the debtor.

4 The provisions governing the application of the Community Customs Code were themselves codified in Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1), as amended (‘the Implementing Regulation’).

Provisions governing the application of Article 220(2)(b) of the Community Customs Code

5 Title III, Part IV, relating to customs debt, of the Implementing Regulation is entitled ‘Recovery of the amount of the customs debt’ and contains a number of articles relating to the application of Article 220(2)(b) of the Community Customs Code.

‘The customs authorities shall themselves decide not to enter uncollected duties in the accounts:

(b) in cases in which they consider that the conditions laid down in Article 220(2)(b) of the [Community Customs] Code are fulfilled, except those in which the dossier must be transmitted to the Commission pursuant to Article 871. However, where Article 871(2), second indent, is applicable, the customs authorities may not adopt a decision waiving entry in the accounts of the duties in question until the end of a procedure initiated in accordance with Articles 871 to 876.

Where a request is submitted for repayment or remission under Article 236 of the [Community Customs] Code in conjunction with Article 220(2)(b) of the [Community Customs] Code, subparagraph (b) of the first paragraph of this Article and Articles 871 to 876 shall apply mutatis mutandis.

For the purposes of applying the above paragraphs the Member States shall give each other mutual assistance, particularly where an error by the customs authorities of a Member State other than the one responsible for taking the decision is concerned.’

7 Article 871 of the Implementing Regulation sets out the cases in which the national authorities, when reaching a decision on an application for remission or repayment under Article 220(2)(b) and Article 236 of the Community Customs Code, are required to refer the matter to the European Commission. That article provides as follows:

‘1. The customs authority shall transmit the case to the Commission to be settled under the procedure laid down in Articles 872 to 876 where it considers that the conditions laid down in Article 220(2)(b) of the [Community Customs] Code are fulfilled and:

it considers that the Commission has committed an error within the meaning of Article 220(2)(b) of the [Community Customs] Code,

the circumstances of the case are related to the findings of a Community investigation carried out under Council Regulation (EC) No 515/97 of 13 March 1997 on mutual assistance between the administrative authorities of the Member States and cooperation between the latter and the Commission to ensure the correct application of the law on customs and agricultural matters or under any other Community legislation or any agreement concluded by the Community with a country or group of countries in which provision is made for carrying out such Community investigations, or

the amount not collected from the operator concerned in respect of one or more import … operations but in consequence of a single error is EUR 500 000 or more.

2. However, the cases referred to in paragraph 1 shall not be transmitted where:

the Commission has already adopted a decision under the procedure provided for in Articles 872 to 876 on a case involving comparable issues of fact and of law;

the Commission is already considering a case involving comparable issues of fact and of law.

6. Where one of the following situations occurs the Commission shall return the dossier to the customs authority and the procedure referred to in Articles 872 to 876 shall be deemed never to have been initiated:

8 Article 874 of the Implementing Regulation provides that the decisions adopted by the Commission are to be notified to the Member State making the request and that the other Member States are to be kept informed.

Provisions governing the application of Article 239 of the Community Customs Code

9 Chapter 3 of Title IV, on the repayment and remission of import or export duties, of Part IV of the Implementing Regulation is entitled ‘Specific provisions relating to the application of Article 239 of the [Community Customs] Code’. It includes a Section 1, on the decisions to be taken by the customs authorities of the Member States, and a Section 2, on the decisions to be taken by the Commission.

Decisions to be taken by the authorities of the Member States (Articles 899 to 904a of the Implementing Regulation)

‘2. In [cases other than those referred to in Articles 900 to 904], except those in which the dossier must be submitted to the Commission pursuant to Article 905, the decision-making customs authority shall itself decide to grant repayment or remission of the import … duties where there is a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned.

Where Article 905(2), second indent, is applicable, the customs authorities may not decide to authorise repayment or remission of the duties in question until the end of a procedure initiated in accordance with Articles 906 to 909.’

Measures to be taken by the Commission (Articles 905 to 909 of the Implementing Regulation)

‘1. Where the application for repayment or remission submitted under Article 239(2) of the [Community Customs] Code is supported by evidence which might constitute a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned, the Member State to which the decision-making customs authority belongs shall transmit the case to the Commission to be settled under the procedure laid down in Articles 906 to 909 where:

– the authority considers that a special situation is the result of the Commission failing in its obligations,

– the circumstances of the case are related to the findings of a Community investigation carried out under Regulation (EC) No 515/97, or under any other Community legislation or any agreement concluded by the Community with countries or groups of countries in which provision is made for carrying out such Community investigations, or

– the amount for which the person concerned may be liable in respect of one or more import … operations but in consequence of a single special situation is EUR 500 000 or more.

The term “the person concerned” shall be interpreted in the same way as in Article 899.

2. However, the cases referred to in paragraph 1 shall not be transmitted where:

– the Commission has already adopted a decision under the procedure provided for in Articles 906 to 909 on a case involving comparable issues of fact and of law,

– the Commission is already considering a case involving comparable issues of fact and of law.

3. The dossier submitted to the Commission shall contain all the information required for full consideration. It shall include detailed information on the behaviour of the operator concerned, and in particular on his professional experience, good faith and diligence. This assessment shall be accompanied by all information that may demonstrate that the operator acted in good faith. The dossier shall also include a statement, signed by the applicant for repayment or remission, certifying that he has read the dossier and either stating that he has nothing to add or listing all the additional information that he considers should be included.

6. Where one of the following situations occurs the Commission shall return the dossier to the customs authority and the procedure referred to in Articles 906 to 909 shall be deemed never to have been initiated:

‘1. The Member State concerned shall be notified of the decision referred to in Article 907 as soon as possible and in any event within one month of the expiry of the period specified in that Article.

The Commission shall notify the Member States of the decisions it has adopted in order to help customs authorities to reach decisions on cases involving comparable issues of fact and law.

2. The decision-making authority shall decide whether to grant or refuse the application made to it on the basis of the Commission’s decision notified in accordance with paragraph 1.

3. Where it is established by the decision referred to in Article 907 that the circumstances under consideration justify repayment or remission, the Commission may specify the conditions under which the Member States may repay or remit duties in cases involving comparable issues of fact and of law.’

13 The applicant in Case T‑249/12, Vestel Iberia, SL, is a Spanish company, whose main activity is importing, distributing, manufacturing and providing after-sales services for electronic devices intended for the general public, including white and brown goods.

14 The applicant in Case T‑269/12, Makro autoservicio mayorista SA, is also a Spanish company, whose main activity is importing and distributing food and non-food products, such as electronic devices.

2. Investigations concerning the import of colour television sets originating in Turkey

15 In June 2000, the trade association Poetic (Producers of European Televisions in Co-operation), consisting of television set manufacturers established in the European Union, filed a complaint with the Commission’s services, in which it was alleged that imports of colour television sets originating in or exported from Turkey were being dumped, causing injury to EU undertakings.

16 On 15 July 2000, the Commission initiated an anti-dumping proceeding concerning colour television sets originating in or exported from Turkey. The initiation of that investigation was the subject-matter of a notice published on the same day in the Official Journal of the European Union (OJ 2000 C 202, p. 4).

17 As part of that investigation, the Commission investigators made an on-site visit to the premises of the Turkish company Vestel Elektronik, which was the supplier of the applicant in Case T‑249/12 and the applicant in Case T‑269/12 (‘the applicants’).

18 On 13 October 2001, the Commission published Decision 2001/725/EC of 28 September 2001 terminating the anti-dumping proceeding concerning imports of colour television receivers originating in Turkey (OJ 2001 L 272, p. 37). In that decision, it stated that there were no exports of colour television sets of Turkish origin, within the meaning of the non-preferential origin rules of the European Union, and considered, therefore, that it was not necessary to impose anti-dumping measures.

19 The Commission took the view in particular that the television sets imported from Turkey originated in the country in which the cathode-ray tube, the cost of which represented more than 35% of the ex-works price, had been manufactured.

20 However, the cathode-ray tubes assembled in Turkey and incorporated into television sets exported from that State to the EU included several tubes from countries whose exports of television sets were subject to anti-dumping measures under Council Regulation (EC) No 2584/98 of 27 November 1998 amending Regulation (EC) No 710/95 imposing a definitive anti-dumping duty on imports of colour television receivers originating in Malaysia, the People’s Republic of China, the Republic of Korea, Singapore and Thailand and collecting definitively the provisional duty imposed (OJ 1998 L 324, p. 1).

21 In early 2002, following Decision 2001/725/EC, another European association of producers of television sets asked the European Anti-Fraud Office (OLAF) to initiate an investigation concerning the origin of the colour television sets imported from Turkey. OLAF acted on that request.

22 In addition, on 14 August 2002, following an interim review of Regulation No 2584/98 and the review of the anti-dumping measures which were soon to expire, the Council adopted Regulation (EC) No 1531/2002 imposing a definitive anti-dumping duty on imports of colour television receivers originating in the People’s Republic of China, the Republic of Korea, Malaysia and Thailand and terminating the proceeding regarding imports of colour television receivers originating in Singapore (OJ 2002 L 231, p. 1).

23 During its investigation, OLAF sent a request for information to Vestel Elektronik and, in April and May 2003, carried out an inspection at the premises of that company. Following those verifications, it found that the origin of the colour television sets was determined by the origin of their cathode-ray tube and that, in consequence, the origin of the sets in question was European, Chinese or Korean, and not Turkish. OLAF therefore instructed the customs authorities of the Member States to recover post-clearance the anti-dumping duties under Regulations 2584/98 and 1531/2002 on all colour television sets manufactured in Turkey by Vestel Elektronik.

3. Assessment procedures initiated by the Spanish customs authorities and applications for remission submitted by the applicants

24 In May 2002, the Spanish customs authorities undertook a post-clearance verification of the imports of colour television sets by the applicants. That verification was suspended pending further information to be forwarded by OLAF, and then resumed in December 2003. In April and May 2004, the Spanish authorities gave a preliminary assessment in which they found that the colour television sets imported by the applicants were of Chinese origin and proposed applying the antidumping duties provided for by Regulation No 2584/98.

25 On 17 May and 23 June 2004, the Spanish customs authorities notified the applicants of a customs claim in respect of their imports of colour television sets from Turkey in 2000 and in 2001 (‘the customs debt’).

26 By letters of 19 May 2005, the applicants each sent the Spanish customs authorities an application for remission of their customs debt pursuant to Article 239 of the Community Customs Code.

27 In early 2007, the Spanish customs authorities informed the applicants that they were forwarding their application for remission to the Commission pursuant to Article 905(3) of the Implementing Regulation.

28 By letters of 8 July 2008, the Commission informed the applicants that their applications for remission would be returned to the Spanish customs authorities on the basis of Article 905(2), second indent, and (6) of the Implementing Regulation, on the grounds that it was already examining the application submitted by Schneider España de Informática SA (‘Schneider’), registered under the reference REM 02/08, whose case-file was comparable in terms of fact and of law. It also informed the Spanish authorities that, under Article 899(2) of the Implementing Regulation, they were required, before reaching a decision on the applications for remission submitted by the applicants, to wait until the Commission had adopted a decision in Case REM 02/08.

29 On 18 January 2010, the Commission adopted Decision COM(2010) 22 final finding that post-clearance entry in the accounts of import duties is justified and that remission of those duties is not justified in a particular case (Case REM 02/08) (‘the contested decision’).

30 In the contested decision, first, the Commission took the view that the customs authorities had not made any error within the meaning of Article 220(2)(b) of the Community Customs Code and that Schneider had not proved that it acted diligently, as required by that provision. Secondly, it considered that no special situation within the meaning of Article 239 of that code could be established.

First application for annulment of the contested decision and the order in Schneider España de Informática v Commission

31 By application lodged with the Court Registry on 6 April 2010 (Case T‑153/10), Schneider sought annulment of the contested decision.

32 By order of 28 February 2012 in Schneider España de Informática v Commission (T‑153/10, ECR, EU:T:2012:94), the Court found that there was no longer any need to adjudicate on the action.

33 In the course of the proceedings, the Spanish courts before which Schneider had, at the same time, challenged the lawfulness of the post-clearance decisions imposing on it the customs duties whose remission Schneider had been refused in the contested decision, by decisions which had become final, annulled those post-clearance decisions, on the ground that the limitation period laid down in Article 221(3) of the Community Customs Code had expired. Therefore, the consequence of annulment of those post-clearance decisions was that payment of the duties at issue could no longer be claimed from Schneider. In those circumstances, the contested decision was devoid of purpose and was not capable of affecting the legal situation of Schneider, which could therefore no longer procure an advantage from the annulment of the contested decision by the Court (order in Schneider España de Informática v Commission, EU:T:2012:94, paragraph 32 above, paragraphs 33 and 34).

34 Moreover, the Court rejected Schneider’s argument that, even if annulment of the contested decision was not capable of affecting its legal situation (with regard to payment of the customs debt imposed on it by the post-clearance decisions), a judgment ruling on the lawfulness of the contested decision would nevertheless be capable of affecting other importers on whose situation the Commission had not reached a decision, but had referred the national customs authorities to the contested decision in relation to those other cases it considered comparable (order in Schneider España de Informática v Commission, paragraph 32 above, EU:T:2012:94, paragraphs 37 to 44).

35 In April 2012, the Spanish customs authorities notified to each of the applicants their decision rejecting their applications for remission (‘the decisions rejecting the applications’), informing them of the contested decision. The Spanish authorities also informed the applicants that they could bring an action for annulment before the competent national authorities and, if they wished, an action for annulment before the Court, within two months of that notification.

36 The Spanish authorities based their rejection of the applicants’ applications for remission on the contested decision.

37 By applications lodged at the Court Registry on 5 and 18 June 2012 (Case T‑249/12 and Case T‑269/12, respectively), the applicants brought the present actions.

38 By separate documents lodged at the Court Registry on 4 and 26 September 2012 (Case T‑249/12 and Case T‑269/12, respectively), the Commission raised a plea of inadmissibility under Article 114 of the Rules of Procedure of the General Court. The applicants lodged their observations on that plea on 19 October and 16 November 2012 (Case T‑269/12 and Case T‑249/12, respectively).

39 By documents lodged at the Court Registry on 24 and 25 September 2012 (Case T‑249/12 and Case T‑269/12, respectively), the Kingdom of Spain sought leave to intervene in the present proceedings in support of the applicants. By order of 14 November 2012, the President of the First Chamber of the Court granted leave to intervene.

40 The Kingdom of Spain was invited to lodge a statement in intervention confined to admissibility and did so. The Commission submitted its observations thereon within the period prescribed. The applicants stated, within the period prescribed, that that statement in intervention did not call for observations on their part.

41 The composition of the chambers of the Court having been altered, the Judge-Rapporteur was assigned to the Sixth Chamber, to which this case was assigned.

42 Upon hearing the Report of the Judge-Rapporteur, the Court (Sixth Chamber) decided to open the oral procedure concerning the admissibility of the present actions.

43 By order of the President of the Sixth Chamber of the Court of 8 October 2014, the parties having been heard, the present cases were joined for the purposes of the oral procedure, in accordance with Article 50 of the Rules of Procedure.

– in the alternative, reserve its decision on that plea until the final judgment;

46 In the statement in intervention confined to admissibility, the Kingdom of Spain submits that the Court should:

47 The parties presented oral argument and answered the questions put to them by the Court at the hearing on 12 November 2014.

48 Pursuant to Article 50 of the Rules of Procedure, the parties were invited during the hearing to submit any observations regarding the possibility, envisaged by the Court, of joining the cases for the purposes of this judgment. The parties stated that they were not opposed to such a joinder, formal note of which was taken in the minutes of the hearing.

49 The admissibility of the present cases having been examined jointly and at the same hearing, the Court therefore deems it appropriate to join them also for the purposes of this judgment.

50 Pursuant to Article 114(1) of the Rules of Procedure, the Court may, if a party so requests, rule on the question of admissibility without considering the merits of the case.

51 The Commission argues in this case that the present actions are inadmissible, since the applicants, in its opinion, are neither directly nor individually concerned by the contested decision and since they, moreover, allowed the period for bringing the action for annulment, laid down in the sixth paragraph of Article 263 TFEU, to expire.

52 The Court deems it appropriate to ascertain, in the first place, whether the contested decision concerns the parties directly.

53 The Commission argues that, because the applicants are not — and do not claim to be — the addressees of the contested decision, they must inter alia show that they are directly concerned by it.

54 In its view, and as the Court found in the order in Schneider España de Informática v Commission, paragraph 32 above (EU:T:2012:94), the applicants may challenge the legality of the contested decision by requesting the national court, when hearing and determining an action against the decision adopted by the national customs authorities concerning them, to make a reference to the Court of Justice for a preliminary ruling on validity of the contested decision.

55 The Commission submits that the contested decision is binding on the Kingdom of Spain, its addressee, only with regard to the situation of Schneider. Accordingly, the contested decision had no direct effect on the applicants’ legal situation and the only decision producing such effects was the one concerning them adopted by the Spanish customs authorities.

56 The Commission states that, although the Implementing Regulation, in particular Article 908(1) thereof, lays down the obligation for it to inform the national authorities of the decisions it adopts concerning applications for remission of duties made to it, such decisions are merely guidance for the national customs authorities. It would certainly be laudable if those national authorities were guided by decisions taken by the Commission, in order to promote a uniform application of the customs rules, but those national authorities should base their decisions on their evaluation of the particular circumstances of each case in which they are called on to act and should assess, in each particular case, the extent to which the prior assessments of the Commission should be followed, having regard to the particular circumstances of each case.

57 The Commission therefore takes the view that the decisions it adopts in a particular case do not directly concern other importers whose situation is more or less comparable. As a result, it considers the applicants not to be directly concerned by the contested decision.

58 The Commission argues that its analysis is supported by the lack of any direct consequences, for the applicants, flowing from annulment of the contested decision. In such an event, the decisions adopted by the national authorities would remain in force and the applicants would have no option but to challenge them before the national courts.

59 In the first place, the applicants submit that the Court, in the order in Schneider España de Informática v Commission, paragraph 32 above (EU:T:2012:94), did not rule out the possibility of operators other than Schneider being directly and individually concerned by the contested decision.

60 In the second place, they maintain that the contested decision was notified to them by the Kingdom of Spain and that the notification stated that they had a period of two months in which to bring an action for annulment before the Court. They argue that the failure to bring such an action could have exposed them to potential claims by the Spanish authorities and could have resulted in their no longer being entitled to challenge the validity of the contested decision in actions brought before the national courts.

61 In the third place, the applicants maintain that the contested decision is of direct concern to them.

62 They submit that, contrary to the argument put forward by the Commission, the contested decision has binding effect on national customs authorities which must deal with situations involving comparable factual and legal situations. In such circumstances, national authorities have no discretion and application of the contested decision is purely automatic.

63 The applicants claim that they are in a situation in which the factual and legal circumstances are comparable to those examined by the Commission in the contested decision. It is precisely for that reason that the Commission returned, pursuant to Article 905(6) of the Implementing Regulation, the applications for remission which they had submitted to the Spanish authorities, pending adoption of the contested decision.

64 Consequently, as regards the arguments put forward by the applicants in support of their applications for remission, the Spanish authorities are bound by the findings made in the contested decision regarding the existence of an error committed by the customs authorities within the meaning of Article 220(2) of the Community Customs Code and the existence of a special situation for the purposes of Article 239 of that code. The lack of discretion on the part of the national authorities is reflected, in the decisions adopted by the Spanish customs authorities in respect of the applicants, by a straightforward reproduction of the statement of reasons for the contested decision. The applicants also submit that the Spanish authorities could not have reached any other conclusion, as regards them, without contradicting the contested decision and thereby failing to have regard to the principle of the primacy of EU law.

65 According to the applicants, the national authorities could exercise their discretion in that respect only if the Commission had concluded that there had been an error by the customs authorities within the meaning of Article 220(2) of the Community Customs Code or a special situation for the purposes of Article 239 of that code. In such a case, it would still be for the national authorities to reach a decision on the good faith of importers whose situation involved issues comparable to those of the situation on which the Commission has reached a decision. However, according to the applicants, where, as in the present case, the Commission considers that the customs authorities have committed no error and there is no special situation, the customs authorities must reject applications for remission submitted by operators whose situation is comparable to that of an importer whose application has been rejected by the Commission.

66 In its statement in intervention confined to issues of admissibility, the Kingdom of Spain, first of all, puts forward considerations on the scope of decisions adopted pursuant to Articles 220 and 239 of the Community Customs Code and on the procedure for adopting such decisions.

67 The Kingdom of Spain observes that Article 239 of the Community Customs Code is a general hardship provision that allows importers in an exceptional situation as compared with other operators engaged in the same activity to obtain the remission or repayment of customs duties lawfully imposed on them. It follows from the case-law that proceedings for the application of Articles 220 and 239 of the Community Customs Code pursue the same aim, namely to limit the payment of customs duties to situations in which payment is compatible with the principle of the protection of legitimate expectations.

68 In its view, it follows that the respective conditions defined in those two articles must be interpreted in the same way, the requirement that there should have been no obvious negligence on the part of the person concerned laid down in Article 239(1) of the Community Customs Code being equivalent to the requirement that errors made by the customs authorities should not be detectable by the person concerned, as provided for in Article 220 of that code.

69 The Kingdom of Spain then observes that the Implementing Regulation provides for certain circumstances in which assessment of the requirements in Articles 220 and 239 of the Community Customs Code is reserved to the Commission and that its competence derives, first, from the necessity of ensuring the uniform application of EU law and, secondly, from the fact that that assessment may result in the European Union being deprived of budgetary income ordinarily due, given that customs duties constitute one of the own resources of the budget of the European Union.

70 The uniform application of EU law is guaranteed by the hierarchy of norms that exists between decisions adopted by the Commission and those adopted by the administrative and judicial authorities of the Member States. Thus, the findings in the decisions of the Commission on the situation of a particular operator in the light of the requirements laid down in Articles 220 and 239 of the Community Customs Code are binding on the authorities, including the judicial authorities, of the Member States required to give a ruling concerning the same operator, while the decisions of national courts cannot bind the Commission. Moreover, the Implementing Regulation provides that the decisions adopted by the Commission are not only to be notified to the Member State that submitted the application for remission or repayment, but are also to be brought to the attention of all the Member States, so as to enable them to adjudicate in the same way on the situation of all operators in a comparable factual and legal situation.

71 The Kingdom of Spain submits that the contested decision is of direct concern to the applicants.

72 In its view, competence to decide on the applicants’ applications for remission of duties is vested in the Commission by the Implementing Regulation and it is only because it considered that the applicants’ situation was comparable in fact and in law to Schneider’s that it could refrain from taking a separate decision in respect of each of the applicants. It follows that the national administrative and judicial authorities have no discretion as to whether or not the applicants are in the same situation as Schneider or as to the action to be taken on their applications for remission, but are bound both by the contested decision and by the Commission’s finding that the factual and legal situations of Schneider and the applicants in the present cases were comparable.

73 The Kingdom of Spain argues, furthermore, that the ability of the applicants to ask the national court to refer a question to the Court of Justice on the validity of the contested decision has no bearing on the ability of those applicants to bring an action for annulment against that decision. The Commission cannot, in that respect, derive any argument from the order in Schneider España de Informática v Commission (paragraph 32 above, EU:T:2012:94), because, in that order, the Court made it clear that the contested decision had legal effects on the situations of importers found by the Commission to be comparable to that of Schneider and reserved judgment on the question of the standing of those importers to bring proceedings against the contested decision.

74 According to the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs, institute proceedings against an act addressed to that person or which is of direct and individual concern to them.

75 It should be recalled that the condition that a natural or legal person must be directly concerned by the decision being challenged, as provided for in the fourth paragraph of Article 263 TFEU, requires two cumulative criteria to be met, namely (i) the contested measure must directly affect the legal situation of the individual and (ii) it must leave no discretion to its addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules without the application of other intermediate rules (order of 6 March 2014 in Northern Ireland Department of Agriculture and Rural Development v Commission, C‑248/12 P, EU:C:2014:137, paragraph 21; see also, to that effect, judgments of 22 March 2007 in Regione Siciliana v Commission, C‑15/06 P, ECR, EU:C:2007:183, paragraph 31, and of 13 October 2011 in Deutsche Post and Germany v Commission, C‑463/10 P and C‑475/10 P, ECR, EU:C:2011:656, paragraph 66).

76 According to the case-law, therefore, the mere fact that a national implementing measure is adopted in order to apply the act of which annulment is sought does not prevent the particular applicant from being regarded as being directly concerned by the act at issue, provided that the Member State responsible for implementing it has no discretion of its own (see, to that effect, judgment of 5 October 2005 in Land Oberösterreich v Commission, T‑366/03 and T‑235/04, ECR, EU:T:2005:347, paragraph 29 and the case-law cited). In such a situation, the adoption of the national decision is automatic and the applicant’s legal situation must be regarded as being directly affected by the contested decision (see, to that effect, judgment of 10 September 2009 in Commission v Ente per le Ville Vesuviane and Ente per le Ville Vesuviane v Commission, C‑445/07 P and C‑455/07 P, ECR, EU:C:2009:529, paragraphs 45 and 46 and the case-law cited).

77 In that regard, moreover, as the parties agree, in order to decide on Schneider’s application for remission, the Kingdom of Spain was bound, without any discretion of its own, by the Commission’s findings in the contested decision, of which it was the addressee. Nevertheless, the power of the authorities, including the judicial authorities, of the Member State addressed is circumscribed only as regards the operator on whose situation the Commission has decided and in respect of the customs operations it has examined (see, to that effect, judgment of 20 November 2008 in Heuschen & Schrouff Oriëntal Foods Trading, C‑375/07, ECR, EU:C:2008:645, paragraphs 64 and 65).

78 The same is not true, however, of the applications submitted by other importers whose situation may be deemed comparable, within the meaning of Article 871(2) and Article 905(2) of the Implementing Regulation, to that of the operator on whose situation the Commission has decided.

79 In the first place, it follows from subparagraph (b) of the first paragraph of Article 869 of the Implementing Regulation, applicable in this case by virtue of the second paragraph of Article 869 and the second paragraph of Article 899(2) of that regulation, that the only obligation on Member States considering an application for remission of customs duties with factual and legal issues comparable to those on which the Commission is called on to decide in a procedure involving another operator is to await the outcome of that procedure, so as to be able take into account the decision adopted by the Commission when they decide on the applications submitted by other operators.

80 It should be noted that the principle that Member States are required, when taking decisions, to take into account the comparability of factual and legal situations that may exist between various operators does not, however, rule out the possibility that the competent Member State is also required to take into account any particularity, of fact or of law, that characterises an operator who has submitted an application for remission. Therefore, the competent Member State cannot be regarded, for the purposes of the case-law on direct concern, as required to implement decisions adopted by the Commission in respect of operators other than the one on whose situation the Member State is ruling.

81 Accordingly, the obligation on the Commission pursuant to the second paragraph of Article 908(1) of the Implementing Regulation, to notify Member States of the decisions adopted relating to the application of Article 239 of the Community Customs Code, has the sole objective of helping customs authorities to reach decisions themselves on cases involving comparable issues of fact and law. Similarly, Article 874 of the Implementing Regulation provides that Member States are required to be notified of the decisions adopted by the Commission under Article 220(2) of the Community Customs Code in order to enable them to decide effectively on the cases before them.

82 Since the Spanish customs authorities exercise their own discretion over applications for remission submitted by importers in a comparable factual and legal situation to another importer whose application for remission had, according to the Commission, to be rejected, one of the cumulative criteria of direct concern (see paragraph 75 above) is absent in this case. The applicants cannot be regarded as being directly concerned by the contested decision.

83 In the second place, none of the arguments put forward by the applicants and the Kingdom of Spain is capable of invalidating that finding.

84 First, while it is true that, in the order in Schneider España de Informática v Commission, paragraph 32 above (EU:T:2012:94), the Court did not rule out the possibility that operators other than Schneider could have been directly concerned by the contested decision, nevertheless, in paragraph 44 of that order, the Court expressly left that question open.

85 Secondly, the applicants’ reliance on a notification of the contested decision by the Kingdom of Spain is, admittedly, one factual circumstance that may be taken into account in calculating the period for bringing an action laid down by the sixth paragraph of Article 263 TFEU. However, it has no bearing on the applicants’ standing.

86 Thirdly, as has been found in paragraph 80 above, the Commission was entitled to take the view, in the contested decision, that neither it, nor the national customs authorities, nor the Turkish authorities had made an error in the case of similar import operations undertaken by Schneider but that does not deprive the Spanish administrative and judicial authorities of the possibility of carrying out an independent assessment of the operations undertaken by the applicants, taking into account any particular circumstances characterising their situation as compared to that of Schneider. It must be noted that, in rejecting the application for remission submitted by the applicants, the Spanish customs authorities have taken care in establishing that the considerations expressed by the Commission in the contested decision could be applicable in this case, in rejecting the applications for remission submitted by the applicants. In addition, while referring to the contested decision, the Spanish customs authorities specifically considered, in this case, that the applicants had not acted in good faith or complied with all the provisions laid down in the legislation in force as regards the customs declaration. The same is true of the finding of the Spanish customs authorities regarding the existence of obvious negligence on the part of the applicants.

87 For the sake of completeness, it should be pointed out that the applicants are not deprived of the possibility of disputing, indirectly, the validity of the contested decision by requesting the national court to refer to the Court of Justice a question for a preliminary ruling for that purpose, should the Spanish authorities decide, in exercising their own discretion, to apply the findings, contained in that decision, relating to Schneider’s operations.

88 It follows from the foregoing that the applicants are not directly concerned by the contested decision and that, consequently, the present actions should be dismissed as inadmissible, without it being necessary to rule on the other pleas of inadmissibility put forward by the Commission.

89 Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

90 Under the first paragraph of Article 87(4) of the Rules of Procedure, the Member States which intervened in the proceedings are to bear their own costs.

1. Joins Cases T‑249/12 and T‑269/12 for the purposes of the present judgment;

3. Orders Vestel Iberia, SL and Makro autoservicio mayorista SA to pay the costs;

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Vestel Iberia v Commission (Judgment) [2015] EUECJ T-249/12 (12 March 2015) URL: http://www.bailii.org/eu/cases/EUECJ/2015/T24912.html Cite as: [2015] EUECJ T-249/12, EU:T:2015:150, ECLI:EU:T:2015:150

Court of Justice of the European Communities (including Court of First Instance Decisions)