Case T‑364/16

ArcelorMittal Tubular Products Ostrava a.s. and Others

v

European Commission

(Dumping — Imports of certain seamless pipes and tubes of iron or steel originating in China — Modification of the TARIC additional code for a company — Action for annulment — Challengeable act — Whether directly concerned — Individual concern — Admissibility — Effect of a judgment annulling a decision — Rule of equivalence of form)

Summary — Judgment of the General Court (Seventh Chamber), 18 October 2018

1. Action for annulment — Challengeable acts — Meaning — Measures producing binding legal effects — Commission Decision modifying the TARIC additional code for a company — Included

   (Art. 263 TFEU; Council Regulation No 926/2009; Commission Regulation 2015/2272)

2. Action for annulment — Judgment annulling a measure — Effects — Obligation to implement — Scope — Both the operative part and the grounds of the judgment to be taken into account — Retroactive effect of annulment — Obligation to ensure that the annulled measure is not replaced by a measure affected by the same irregularity

   (Arts 263 TFEU and 266 TFEU)

3. Action for annulment — Natural or legal persons — Measures of direct and individual concern to them — Whether directly concerned — Criteria — Commission Decision modifying the TARIC additional code for a company — Action brought by competing companies — Admissibility

   (Art. 263, fourth para. TFEU; Commission Regulation 2015/2272)

4. Action for annulment — Natural or legal persons — Measures of direct and individual concern to them — Individual concern — Criteria — Commission Decision modifying the TARIC additional code for a company — Action brought by competing companies — Admissibility

   (Art. 263, fourth para. TFEU; Commission Regulation 2015/2272)

5. Action for annulment — Admissibility criteria — Natural or legal persons — Action brought by several applicants against the same decision — Capacity to act of one of them — Admissibility of the action as a whole

   (Art. 263, fourth para. TFEU)

6. Common commercial policy — Protection against dumping — Expiry review procedure — Subject of the review procedure

   (Council Regulation No 1225/2009, Art. 11(2), first para.; Commission Regulation 2015/2272)

7. Acts of the institutions — Act amending an earlier provision — General principles of law — Rule of equivalence of form — Infringement

   (Council Regulation No 1225/2009, Art. 14(1); Commission Regulation 2015/2272)

1.  Only measures the legal effects of which are binding on, and capable of affecting the interests of, the applicants are acts or decisions which may be the subject of an action for annulment, under Article 263 TFEU. Furthermore, an act which is neither capable of producing, nor intended to produce, any legal effects cannot be the subject of an action for annulment. In order to ascertain whether or not a measure which has been challenged produces such effects it is necessary to look to its substance.

   It follows that the Commission decision to take a company out of the list of companies listed under TARIC additional code A 950 and to list it under TARIC additional code C 129 produced definitive legal effects, brought into being by the national customs authorities as from the date of the creation of TARIC additional code C 129, its objective being that those authorities should no longer collect anti-dumping duties with respect to goods produced by that company, as set by Implementing Regulation 2015/2272, although that regulation has not been annulled or declared invalid by the Courts of the European Union. The legal effects of that decision are such as to affect the interests of the undertakings which prompted the anti-dumping investigation.

   (see paras 22, 23, 32, 34)

2.  See the text of the judgment.

   (see paras 33, 61, 64-66)

3.  In order to satisfy the requirement that the decision forming the subject matter of the proceedings must be of direct concern to a natural or legal person, as laid down in the fourth paragraph of Article 263 TFEU, two cumulative criteria must be met, namely, first, the contested measure must directly affect the legal situation of the individual and, second, 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.

   As regards the first condition, whether the legal situation of the particular litigant is directly affected, in that the effect of the contested decision is that the anti-dumping duties laid down by Implementing Regulation 2015/2272 are no longer collected on imports of the goods produced by a company, although the objective of the request for review made on behalf of the applicants was, on the contrary, the imposition of such duties, the decision modifying the additional TARIC code is of direct concern to the applicants, who compete with that company.

   As regards the second condition, whether the persons to whom that decision is addressed have any discretion, the Member States must, as a general rule, apply the measures represented by the TARIC codes and additional codes, in order to achieve a uniform implementation of the Common Customs Tariff. It is therefore clear that the national customs authorities had no discretion in this case.

   (see paras 38, 40, 43, 44)

4.  Persons other than those to whom a decision is addressed may claim to be individually concerned, within the meaning of the fourth paragraph of Article 263 TFEU, only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and, by virtue of those factors, distinguishes them individually just as in the case of the person addressed by such a decision.

   The contested decision, the effect of which was that the anti-dumping duties laid down by Implementing Regulation 2015/2272 were no longer collected on goods produced by a company, is of individual concern to the applicants, who, as Union producers, were sampled and at whose premises verification visits were carried out within the review procedure, that procedure having been initiated on their behalf and in the light of the objections they had put forward, culminating in their specific situation being taken into account.

   (see paras 46, 50)

5.  See the text of the judgment.

   (see para. 47)

6.  In accordance with Article 11(2) of Regulation No 1225/2009, a definitive anti-dumping measure is to expire five years from its imposition or five years from the date of the conclusion of the most recent review which has covered both dumping and injury, unless it is determined in a review that the expiry would be likely to lead to a continuation or recurrence of dumping and injury. In that context, the Commission may either maintain measures that are in force or allow them to expire. The subject of that provision is therefore not the imposition, for the first time, of anti-dumping measures, but the maintenance, if appropriate, of anti-dumping measures that are in force and that are coming normally to the point of expiry.

   (see para. 62)

7.  In accordance with the rule of equivalence of form, which constitutes a general principle of law, the form used to bring a measure to the notice of a third party must also be used for all subsequent amendments of that measure.

   The non-collection with respect to one company of anti-dumping duties laid down by a regulation which has not been annulled or declared invalid by the Courts of the European Union must normally be brought about by means of a regulation. By definitively prescribing the non-collection of anti-dumping duties on the goods produced by a company, to be collected under Implementing Regulation 2015/2272, by creating a TARIC additional code, the Commission thereby infringed the rule of equivalence of form.

   (see paras 69, 71)