Case T‑328/21

Airoldi Metalli SpA

v

European Commission

Order of the General Court (Fourth Chamber), 2 May 2022

(Action for annulment – Dumping – Imports of aluminium extrusions originating in China – Act imposing a definitive anti-dumping duty – Importer – Regulatory act entailing implementing measures – Act not of individual concern – Inadmissibility)

Action for annulment – Natural or legal persons – Regulatory acts entailing implementing measures – Concept – Regulation imposing anti-dumping duties – Included – Introduction of an electronic information exchange system between economic operators and national customs authorities – No impact

(Art. 263, para. 4, TFEU; Commission Regulation 2021/546)

(see paragraphs 19, 20, 23-33, 35)

Résumé

Following a complaint lodged by an association representing European producers of aluminium extrusions (‘the product concerned’), the European Commission adopted, after its anti-dumping investigation, an implementing regulation imposing a definitive anti-dumping duty on imports of the product concerned originating in the People’s Republic of China. ( 1 )

Airoldi Metalli SpA (‘the applicant’), which is an importer of the product concerned, brought an action for annulment of the contested regulation.

The Commission raised an objection of inadmissibility against that action, on the ground that the applicant did not have standing to bring proceedings under the fourth paragraph of Article 263 TFEU, since the contested regulation entailed implementing measures with regard to it and was not of individual concern to it.

That objection of inadmissibility is upheld by the General Court, which, in the light of the applicant’s arguments concerning the automation of customs procedures following an amendment to the customs legislation, clarifies its case-law in accordance with which regulations imposing definitive anti-dumping duties entail implementing measures within the meaning of the fourth paragraph of Article 263 TFEU.

Findings of the Court

As a preliminary point, the General Court observes that, under the fourth paragraph of Article 263 TFEU, any natural or legal person may institute proceedings against an act addressed to that person (first limb) or which is of direct and individual concern to them (second limb), and against a regulatory act which is of direct concern to them and does not entail implementing measures (third limb).

After finding that, in the circumstances of the present case, the applicant was not the addressee of the contested regulation and noting that, in accordance with settled case-law, such regulations are of direct concern to an importer such as the applicant, the Court examines whether the applicant had standing to bring proceedings against the contested regulation under the second or third limb of the fourth paragraph of Article 263 TFEU.

As regards, in the first place, the third limb relating to the absence of implementing measures for the contested regulatory act, the Court notes that, in accordance with settled case-law, brought under the provisions of the 1992 Customs Code ( 2 ) and reproduced pursuant to the provisions of the 2013 Customs Code, ( 3 ) regulations imposing definitive anti-dumping duties entail implementing 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.

In particular, the Court notes that the provisions of the 2013 Customs Code provide that, inter alia, the amount of duty payable is to be determined by the national customs authorities, that amount is to be notified to the debtor by those authorities and, where the amount of that debt is equal to the amount declared by the importer, release of the goods by the customs authorities is to be equivalent to notifying the debtor of the customs debt. It cannot therefore be inferred from the amendment of the customs legislation that, under the 2013 Customs Code, which is applicable in the present case, regulations imposing definitive anti-dumping duties no longer entail implementing measures with regard to importers. That is all the more so since those provisions of the 2013 Customs Code differ very little from those previously in force.

According to the Court, those considerations are not, first of all, affected by the computerisation of the information exchange system introduced by the 2013 Customs Code. That computerisation concerns exchanges between economic operators and customs authorities and does not as such mean that imports of products and the payment of anti-dumping duties henceforth involve only economic operators without any subsequent involvement by national customs authorities.

Examining, next, the process for making a customs declaration and determining the duty payable, the Court finds that the contested regulation can have effect only after the importer makes a customs declaration in the electronic customs system, which is itself necessarily followed by a measure adopted by the national customs authorities. While it is true that that measure most often takes the form of an electronic communication, the fact remains that it is a measure adopted by the national authorities.

Lastly, the Court observes that to infer from the automation introduced by the 2013 Customs Code that the contested regulation does not entail implementing measures would amount to making assessment of the legal criterion of there being no implementing measures for an act subject to purely technical circumstances. Such a simplification of a substantive nature, even if it remained justified by the national authorities’ lack of discretion in their implementation of the contested regulation, cannot have such consequences.

In the light, in particular, of those considerations, the Court concludes that the applicant does not have standing to bring an action for annulment of the contested regulation under the third limb of the fourth paragraph of Article 263 TFEU, in so far as that regulation entails implementing measures with regard to the applicant.

Finding, in the second place, that, in addition, the contested regulation is not of individual concern to the applicant, within the meaning of the second limb of the fourth paragraph of Article 263 TFEU, the Court dismisses the action for annulment as inadmissible.

( 1 ) 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 contested regulation’).

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

( 3 ) Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 establishing the Union Customs Code (OJ 2013 L 269, p. 1), as amended (‘the 2013 Customs Code’).