ORDER OF THE GENERAL COURT (First Chamber)

7 December 2022(*)

(Action for annulment – Customs union – Common Customs Tariff – Tariff and statistical nomenclature – Classification in the Combined Nomenclature – Tariff heading – Regulatory act entailing implementing measures – Lack of individual concern – Inadmissibility)

In Case T‑721/21,

Sunrise Medical BV, established in Amsterdam (Netherlands),

Sunrise Medical Logistics BV, established in Amsterdam,

represented by L. Ruessmann and J. Beck, lawyers,

applicants,

v

European Commission, represented by J. Hradil and M. Salyková, acting as Agents,

defendant,

THE GENERAL COURT (First Chamber),

composed of D. Spielmann, President, V. Valančius and I. Gâlea (Rapporteur), Judges,

Registrar: E. Coulon,

having regard to the written part of the procedure, inter alia:

–        the objection of inadmissibility raised by the Commission by document lodged at the Court Registry on 24 January 2022,

–        the applicants’ observations on the objection of inadmissibility lodged at the Court Registry on 11 March 2022,

makes the following

Order

1        By their action based on Article 263 TFEU, the applicants, Sunrise Medical BV and Sunrise Medical Logistics BV, seek the annulment of Commission Implementing Regulation (EU) 2021/1367 of 6 August 2021 concerning the classification of certain goods in the Combined Nomenclature (OJ 2021 L 294, p. 1) (‘the contested regulation’).

 Background to the dispute

2        It should be noted at the outset that, first, for the purposes of applying the Common Customs Tariff and facilitating the establishment of statistics of the European Union’s external trade and other EU policies relating to imports and exports of goods, the Council of the European Union, by adopting Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended, established a complete nomenclature of goods being imported and exported in the European Union (‘the Combined Nomenclature’). That nomenclature is set out in Annex I to that regulation.

3        Secondly, 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, corrigendum OJ 2013 L 287, p. 90; ‘the Union Customs Code’) lays down the rules and general procedures that must be applied to goods imported to or exported from the European Union.

4        The applicants, established in the Netherlands, import and sell products intended to alleviate the physical and social consequences of disability, in particular mobility difficulties. In the context of their activities, they import into the European Union, in particular, electric scooters for persons with reduced mobility (‘the product at issue’). They also market those products in the Member States.

5        For several years, there have been disagreements as to the appropriate classification of the product at issue in the Combined Nomenclature, notably over the question whether it must classified under heading 8703 which covers ‘Motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading No 8702), including station wagons and racing cars’, or under heading 8713 which includes ‘Carriages for disabled persons, whether or not motorised or otherwise mechanically propelled’. In that context, differing judgments of 22 December 2010, Lecson Elektromobile (C‑12/10, EU:C:2010:823), and of 26 May 2016, Invamed Group and Others (C‑198/15, EU:C:2016:362), have been delivered. Furthermore, the Commission adopted Regulation (EC) No 718/2009 of 4 August 2009 concerning the classification of certain goods in the Combined Nomenclature (OJ 2009 L 205, p. 7).

6        As those disagreements persisted, on 6 August 2021, pursuant to Article 57(4) and Article 58(2) of the Union Customs Code, the European Commission adopted the contested regulation. The annex to the contested regulation consists of a table divided into three columns. Column 1 of the table reproduces the description of the goods in question, column 2, the classification in the Combined Nomenclature and, column 3, the grounds. Under that table ‘purely for information’ there is a photograph of the goods concerned. The classification of those goods is set out as follows:

7        In accordance with Article 3 therein, the contested regulation entered into force twenty days after its publication in the Official Journal of the European Union, namely on 17 August 2021.

 Forms of order sought

8        The applicants claim that the Court should:

–        annul the contested regulation;

–        order the Commission to pay the costs.

9        In its objection of inadmissibility under Article 130 of the Rules of Procedure of the General Court, the Commission contends that the Court should:

–        dismiss the application as inadmissible;

–        order the applicants to pay the costs.

10      In their observations on the objection of inadmissibility, the applicants claim that the Court should declare the action admissible.

 Law

11      Under Article 130(1) and (7) of the Rules of Procedure, on the application of the defendant the Court may decide on inadmissibility or lack of competence without going to the substance of the case.

12      In this case, as the Commission has applied for a decision on inadmissibility, the Court, which considers that it has sufficient information available to it from the material in the file, has decided to rule on that application without taking further steps in the proceedings.

13      In support of its objection of inadmissibility, the Commission raises two pleas of inadmissibility, alleging, first, that the contested regulation produces its effects in respect of the applicants only through implementing measures, within the meaning of the fourth paragraph of Article 263 TFEU and, secondly, that the regulation is not of individual concern to the applicants.

14      The applicants dispute the Commission’s argument as to the first plea for inadmissibility and submit that the contested regulation does not entail implementing measures for them. In addition, they point out that they did not claim that the contested regulation was of individual concern to them. In that respect, they accept that the case-law is well-established and do not intend to submit observations on that to the General Court.

15      Under the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.

16      In the first place, it must be observed that the applicants, as they acknowledge, are not addressees of the contested regulation. In those circumstances, pursuant to the fourth paragraph of Article 263 TFEU, they may bring an action for annulment of that regulation only in two situations, namely, first, if they are directly and individually concerned by it or, secondly, if the regulation is a regulatory act which is of direct concern to them and which does not entail implementing measures.

17      In the second place, it should be noted that, as the Commission admits, the contested regulation is a regulatory act within the meaning of Article 263 TFEU. Thus, it is of general application, in that it applies to objectively determined situations and produces legal effects concerning categories of persons envisaged in general and in the abstract. Moreover, the contested regulation does not constitute a legislative act because it was not adopted in accordance with either the ordinary legislative procedure or the special legislative procedure within the meaning of paragraphs 1 to 3 of Article 289 TFEU (judgment of 12 September 2013, Palirria Souliotis v Commission, T‑380/11, not published, EU:T:2013:420, paragraph 27). It is, rather, a Commission act adopted in the exercise of its implementing powers, on the basis of Article 57(4) and Article 58(2) of the Union Customs Code.

 Whether there are implementing measures and whether the applicants are directly concerned

18      The Commission submits that the contested regulation requires the adoption of implementing measures, within the meaning of the fourth paragraph of Article 263 TFEU. Such a tariff classification regulation produces real and definitive legal effects on an importer only by means of national implementing measures. That is so irrespective of whether those measures are mechanical in nature. The applicants could challenge those measures before the national courts and allege the illegality of the contested regulation before those courts. Finally, when faced with a question of interpretation of a provision of EU law, a Member State court could or should, depending on the case, refer a question to the Court of Justice for a preliminary ruling.

19      The applicants submit that they have standing to bring proceedings because the contested regulation does not entail implementing measures. Thus, they consider that that regulation does not leave importers and national authorities any discretion regarding its implementation. They also submit that the interpretation of the conditions laid down in the fourth limb of the fourth paragraph of Article 263 TFEU must take into account several factors, in particular the right to effective judicial protection, the subject matter of the action and the position of the applicants in the given case.

20      According to the case-law, the question whether the contested regulation entails implementing measures should be assessed by reference to the position of the person pleading the right to bring proceedings under the last 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. It is also irrelevant whether those measures are mechanical in nature (see order of 10 June 2020, Golden Omega v Commission, T‑846/19, not published, EU:T:2020:248, paragraph 33 and the case-law cited).

21      In that regard, it has been held that, for a tariff classification regulation, such as the one challenged in this case, to produce real and definitive legal effects on the importer at issue, it is always necessary that national measures have been taken beforehand, in particular on submission of the customs declaration by that importer (see order of 19 July 2017, Pfizer and Pfizer santé familiale v Commission, T‑716/16, not published, EU:T:2017:526, paragraph 38 and the case-law cited).

22      The customs system, as instituted by the Union Customs Code and of which the contested regulation forms part, in so far as it classifies in the Combined Nomenclature the goods described therein, provides that the receipt of duties fixed by the Combined Nomenclature is carried out, in all cases, on the basis of measures adopted by the national authorities (see order of 10 June 2020, Golden Omega v Commission, T‑846/19, not published, EU:T:2020:248, paragraph 35 and the case-law cited).

23      Consequently, the contested regulation cannot be classified as a regulatory act which does not entail implementing measures, within the meaning of the fourth paragraph of Article 263 TFEU.

24      That conclusion cannot be called into question by the arguments put forward by the applicants.

25      First, the applicants submit that the contested regulation does not leave any discretion to importers and national authorities as regards its implementation, which is purely automatic. The contested regulation prevents the authorities of the Member State from making a tariff classification under heading 8713 of the Combined Nomenclature, with the result that it produces a definitive effect as regards customs duties. Therefore, the product at issue must be subject to those custom duties and cannot benefit from relief from custom duties.

26      It is admittedly true that the contested regulation has the direct consequence of requiring the applicants, like any other economic operator involved in customs activities relating to goods corresponding to the description set out therein, to adopt for those goods, when processing a customs transaction in the customs territory of the European Union, the subheading 8703 10 18 of the Combined Nomenclature (see, to that effect, order of 10 June 2020, Golden Omega v Commission, T‑846/19, not published, EU:T:2020:248, paragraph 41 and the case-law cited).

27      However, that obligation in itself produces no real and definitive legal effects on the economic operator in question. In particular, it does not in itself entail a decision on the tariff classification which could be indicated in the customs declaration, nor, consequently, on the amount of customs duties which will potentially have to be paid (see order of 10 June 2020, Golden Omega v Commission, T‑846/19, not published, EU:T:2020:248, paragraph 42 and the case-law cited).

28      Therefore, it must be held, as is clear from the settled case-law, that the applicants’ line of argument as to the national authorities’ lack of discretion is relevant only in the context of the assessment of the requirements for direct concern to an applicant. By contrast, the question of whether the contested regulation leaves discretion to the national authorities responsible for the implementing measures is irrelevant in ascertaining whether that regulation entails implementing measures (see, to that effect, the orders of 14 July 2015, Forgital Italy v Council, C‑84/14 P, not published, EU:C:2015:517, paragraph 44, and of 10 June 2020, Golden Omega v Commission, T‑846/19, not published, EU:T:2020:248, paragraph 43 and the case-law cited).

29      Secondly, the applicants submit that the fourth limb of the fourth paragraph of Article 263 TFEU must be interpreted in the light of its objective of implementing the right to effective judicial protection guaranteed by Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’). They submit that, in the present case, in order to be able to allege that an act produces real and definitive legal effects, either they will be obliged to break the law and would be exposed to punitive measures, or they would have to import the goods under the classification laid down and submit a claim for reimbursement or remission, which would involve high levels of complexity and losses. Finally, they contest the effectiveness of actions before the courts and tribunals of the Member States and submit that the alternative solution of the preliminary ruling procedure is inappropriate, as the national courts would be free to determine whether or not the questions of validity of a provision of EU law should be brought before the Court of Justice.

30      It must be observed that it is clear from well-established case-law that Article 47 of the Charter is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union, as is apparent also from the Explanation on Article 47 of the Charter, which must, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, be taken into consideration for the interpretation of the Charter (see judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 43 and the case-law cited).

31      Accordingly, the conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, but that interpretation cannot have the effect of setting aside the conditions expressly laid down in that Treaty (see, to that effect, judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 44 and the case-law cited).

32      However, judicial review of compliance with the European Union legal order is ensured, as can be seen from Article 19(1) TEU, not only by the Court of Justice but also by the courts and tribunals of the Member States. The FEU Treaty has established, by Articles 263 and 277 TFEU, on the one hand, and Article 267 TFEU, on the other, a complete system of legal remedies and procedures designed to ensure judicial review of the legality of European Union acts, and has entrusted such review to the European Union judicature. In that connection, it must be emphasised that, in proceedings before the national courts, individual parties have the right to challenge before the courts the legality of any decision or other national measure relative to the application to them of a European Union act of general application, by pleading the invalidity of such an act (see judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraphs 45 and 46 and the case-law cited).

33      It follows that requests for preliminary rulings which seek to ascertain the validity of a measure constitute, like actions for annulment, a means for reviewing the legality of European Union acts (see judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 47 and the case-law cited).

34      In that regard, it must be borne in mind that where a national court or tribunal considers that one or more arguments for invalidity of a European Union act, put forward by the parties or, as the case may be, raised by it of its own motion, are well founded, it is incumbent upon it to stay proceedings and to make a reference to the Court of Justice for a preliminary ruling on the act’s validity, the Court of Justice alone having jurisdiction to declare a European Union act invalid (see judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 48 and the case-law cited).

35      As regards persons who do not fulfil the requirements of the fourth paragraph of Article 263 TFEU for bringing an action before the courts of the European Union, it is for the Member States to establish a system of legal remedies and procedures which ensure respect for the fundamental right to effective judicial protection, an obligation which has moreover been reaffirmed by the second subparagraph of Article 19(1) TEU (see, to that effect, judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraphs 49 and 50 and the case-law cited).

36      In the present case, it should be noted that the applicants could, in principle, without being required to infringe the contested regulation beforehand, challenge the national measures implementing the contested regulation and, in that context, plead the unlawfulness of the contested regulation before the national courts, which could, before giving judgment, have recourse to the provisions of Article 267 TFEU (see order of 19 July 2017, Pfizer and Pfizer santé familiale v Commission, T‑716/16, not published, EU:T:2017:526, paragraph 53 and the case-law cited).

37      Furthermore, in that regard, it should be recalled that the Union Customs Code has expressly prescribed the remedy available to import duty debtors who consider that such duties have been wrongly imposed on them by the customs authorities. That remedy is exercisable at national level, in accordance with the appeals procedure implemented by the Member State in question in compliance with the principles set out in Articles 43 to 45 of that code (see order of 19 July 2017, Pfizer and Pfizer santé familiale v Commission, T‑716/16, not published, EU:T:2017:526, paragraph 54 and the case-law cited).

38      Therefore, and in the light of paragraphs 32 to 34 above, the applicants’ argument alleging the inappropriate nature of the preliminary ruling procedure must also be rejected, since a reference for an assessment of validity, like an action for annulment, is a means of reviewing the legality of acts of the European Union.

39      Finally, as regards the applicants’ argument that procedures in the Member States entail additional costs and delays and that, in particular, the submission of a claim for reimbursement or remittance would involve a higher level of complexity than an action for annulment against the contested regulation before the EU courts, it must be held that heavier administrative and financial burdens cannot change the conditions for admissibility of an action for annulment established by the fourth paragraph of Article 263 TFEU (see, by analogy, judgment of 12 September 2013, Valeo Vision v Commission, T‑457/11, not published, EU:T:2013:414, paragraph 77 and the case-law cited).

40      Thirdly, the applicants submit that the usual approach in customs cases to admissibility is inappropriate in the present case. The subject matter of the proceedings should be taken into account. The action is not supported solely on grounds of an incorrect classification in the Combined Nomenclature, but also on grounds of a breach of the international obligations by which the European Union is bound under the United Nations Convention on the Rights of Persons with Disabilities, which was approved on behalf of the European Community by Council Decision 2010/48/EC of 26 November 2009 (OJ 2010 L 23, p. 35).

41      It should be borne in mind that, according to the case-law, in order to determine whether the act being challenged entails implementing measures, reference should be made exclusively to the subject matter of the action and, where an applicant seeks only the partial annulment of an act, it is solely any implementing measures which that part of the act may entail that must, as the case may be, be taken into consideration (see, to that effect, judgment of 19 December 2013, Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 31, and order of 14 July 2015, Forgital Italy v Council, C‑84/14 P, not published, EU:C:2015:517, paragraph 52).

42      In the present case, it suffices to note that the present action seeks the annulment of the contested regulation in its entirety. Furthermore, as is clear from paragraph 22 above, the customs system of which the contested regulation forms part provides that the receipt of duties fixed by the Combined Nomenclature is carried out, in all cases, on the basis of measures adopted by the national authorities.

43      In addition, as regards the applicants’ argument alleging a breach of the European Union’s international obligations under the United Nations Convention on the Rights of Persons with Disabilities, it must be observed that that relates exclusively to the substance of the action and that it cannot therefore call into question the conditions for admissibility of an action for annulment (see, by analogy, order of 3 July 2007, Commune de Champagne and Others v Council and Commission, T‑212/02, EU:T:2007:194, paragraph 217). Therefore, it must be rejected.

44      Lastly, in the light of the considerations set out in paragraphs 25 to 43 above, it must be held that the applicants’ argument that there are factual differences distinguishing this case from that which gave rise to the order of 19 July 2017, Pfizer and Pfizer santé familiale v Commission (T‑716/16, not published, EU:T:2017:526), is unfounded. It is not possible to identify any difference between those cases capable of calling into question the existence of implementing measures, within the meaning of the fourth paragraph of Article 263 TFEU in this case.

45      It follows from the foregoing that the contested regulation entails implementing measures notwithstanding their automatic nature.

46      In that respect, having regard to the automatic nature of the implementing measures that the contested regulation entails, it must be held that the applicants are directly concerned by that regulation. The contested regulation directly affects their legal situation and leaves no discretion to the addressees of that measure who are entrusted with the task of implementing it, that implementation being purely automatic and resulting from EU rules without the application of other intermediate rules (see, to that effect, order of 10 June 2020, Golden Omega v Commission, T‑846/19, not published, EU:T:2020:248, paragraph 25 and the case-law cited). Moreover, the direct concern of the applicants is not contested by the parties.

47      Consequently, the applicants have standing to bring proceedings against the contested regulation only if they are individually concerned by it, within the meaning of the fourth paragraph of Article 263 TFEU.

 Whether there is an absence of individual concern to the applicants

48      The Commission contends that the applicants are not individually concerned by the contested regulation. According to the Commission, they are affected by that regulation only in their objective capacity as importers of goods in the same way as any other economic operator actually or potentially in the same situation. The contested regulation does not affect the applicants because of certain attributes which are peculiar to them or circumstances which differentiate them from all other persons.

49      It should be noted that the applicants do not assert that they are individually concerned by the contested regulation. As has been noted in paragraph 14 above, they accept that the contested regulation does not affect them individually and do not make submissions to the General Court in that respect.

50      In any event, it should be pointed out that Article 1 of the contested regulation, the purpose of which is to classify within the Combined Nomenclature the goods described in column 1 of the table set out in the annex to that regulation, under the corresponding code indicated in column 2 of that table, namely subheading 8703 10 18, is a measure of general application that applies to an objectively determined situation and produces legal effects with respect to categories of persons envisaged generally and in the abstract, and in particular economic operators engaged in customs activities relating to such goods.

51      However, even a measure of general application may, in certain circumstances, be of individual concern to some economic operators. That is the case where the measure at issue affects them by reason of certain attributes peculiar to them or by reason of a factual situation which differentiates them from all other persons and thereby distinguishes them individually in the same way as an addressee (see order of 10 June 2020, Golden Omega v Commission, T‑846/19, not published, EU:T:2020:248, paragraph 48 and the case-law cited).

52      In that regard, the sole fact that a measure of general application may have practical effects which differ as between the various persons to whom it applies is not such as to differentiate them from all the other operators concerned, where that measure is applied on the basis of an objectively determined situation (see order of 10 June 2020, Golden Omega v Commission, T‑846/19, not published, EU:T:2020:248, paragraph 49 and the case-law cited).

53      In addition, according to settled case-law, the possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them as long as that measure is applied by virtue of an objective legal or factual situation defined by the measure in question (see order of 10 June 2020, Golden Omega v Commission, T‑846/19, not published, EU:T:2020:248, paragraph 50 and the case-law cited).

54      Moreover, the fact that certain operators are economically more affected by a measure than the other operators in the same sector is not sufficient for them to be regarded as individually concerned by that measure (see order of 10 June 2020, Golden Omega v Commission, T‑846/19, not published, EU:T:2020:248, paragraph 51 and the case-law cited).

55      Therefore, it must be held that the applicants are affected by the contested regulation only in their objective capacity as economic operators engaged in customs activities in respect of goods corresponding to the description of the goods set out in column 1 of the table annexed to the contested regulation, in the same way as any other operator actually or potentially in the same situation.

56      It follows from all the foregoing considerations that the objection of admissibility raised by the Commission must be upheld and, therefore, the action must be dismissed as inadmissible.

 Costs

57      Under Article 134(1) 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.

On those grounds,

THE GENERAL COURT (First Chamber)

hereby:

1.      Dismisses the application as inadmissible.

2.      Orders Sunrise Medical BV and Sunrise Medical Logistics BV to pay the costs.

Luxembourg, 7 December 2022.

*      Language of the case: English.