19.6.2017   

EN

Official Journal of the European Union

C 195/12

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set aside the order of the General Court of the European Union of 25 January 2017 in Case T-217/16;

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refer Case T-217/16 back to the General Court of the European Union, so that it may rule on the temporal limitation laid down in Article 2 of Commission Implementing Regulation (EU) 2016/278 of 26 February 2016;

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order the European Commission to pay the costs.

1.

By its first ground of appeal, the appellant submits that it had standing to bring an action for annulment before the General Court of the European Union (‘the General Court’) against Regulation 2016/278 (1), since that regulation satisfies the requirements set out in paragraph 4 of Article 263 TFEU. As the Court knows, those requirements are: (i) that the contested act is of direct and individual concern or (ii) that the contested act is a regulatory act which is of direct concern and does not entail implementing measures.

In relation to the requirement that the contested act must be of direct and individual concern, the appellant submits that the General Court in no way disputed that it was directly concerned. In addition, IPM is individually concerned by the contested act since the regulation in question affects each and every importer that included TARIC nomenclature or codes in its Single Administrative Documents (SADs) in relation to the goods subject to the anti-dumping duties, between 2009 (when Regulation 91/2009 entered into force) and 2016 (when Regulation 2016/278 entered into force) inclusive. In that manner, those importers formed a ‘limited class of economic operators’, since the limitation of the effects of the derogation from the antidumping duties affected them in a concrete and specific way.

Furthermore, as regards the requirement that the contested act must be a regulatory act which is of direct concern and does not entail implementing measures, the appellant’s arguments seek to prove that Regulation 2016/278 does not entail implementing measures. Thus the collection of duties to which the General Court refers as implementing measures of the regulation are not actually implementing measures, since the only duties collected from the appellant in that respect derived from the provisions of Regulation 91/2009 (2), and in no case from the provisions of the contested regulation (Regulation 2016/278). This is demonstrated by that fact that the duties collected from IPM by the Spanish tax authorities were imposed before the entry into force of the contested regulation.

Thus, the contested Article 2 is an autonomous provision that does require any subsequent measure in order to produce legal effects as from the date of its entry into force, since it merely repeals certain anti-dumping duties in the light of their incompatibility with the Anti-Dumping Agreement and the GATT treaty.

Moreover, the regulation imposes an obligation not to act, since it orders the Spanish State not to issue any measure collecting anti-dumping duties, with the result that it precludes the issue of any tax measure capable of being challenged under national law, and bringing an action for annulment is therefore the only way in which IPM may challenge Article 2 of Regulation 2016/278.

For all the foregoing reasons, the appellant submits that there is no doubt that IPM is entitled under Article 263 TFEU to bring an action for annulment against Article 2 of Regulation 2016/278, since that regulation, by virtue of its nature and content, does not entail any implementing measures.

2.

By its second ground of appeal, the appellant refers to the claim it made before the General Court seeking acknowledgement that Article 1 of the contested regulation has retroactive effects. In that respect, contrary to what the General Court indicated in the order appealed against, in which it stated that it did not have jurisdiction to declare that Article 1 of the regulation has retroactive effects, the appellant submits that this is a necessary consequence of the annulment of Article 2 of the regulation, since that article establishes the temporal limitation, the validity of which formed the basis of the dismissed action for annulment. Accordingly, the claim made by the appellant seeking a declaration that Article 1 of that regulation has retroactive effects is entirely admissible, since that claim will be accepted implicitly once Article 2 of the regulation is declared invalid.