Airoldi Metalli v Commission (Appeal - Dumping - Imports of aluminium flat-rolled products originating in China - Judgment) [2023] EUECJ C-764/22P (19 October 2023)

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(Appeal – Dumping – Imports of aluminium flat-rolled products originating in China – Definitive anti-dumping duty – Action for annulment – Importer – Locus standi – Fourth paragraph of Article 263 TFEU – Condition that the measure must be of individual concern to the applicant – Regulatory act not entailing implementing measures)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 15 December 2022,

Airoldi Metalli SpA, established in Molteno (Italy), represented by M. Campa, D. Rovetta, V. Villante, avvocati, and P. Gjørtler, advokat,

European Commission, represented by G. Luengo and J. Zieliński, acting as Agents,

composed of F. Biltgen, President of the Chamber, N. Wahl (Rapporteur) and M.L. Arastey Sahún, Judges,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 By its appeal, Airoldi Metalli SpA seeks to have set aside the order of the General Court of the European Union of 5 October 2022, Airoldi Metalli v Commission (T‑1/22, EU:T:2022:618) (‘the order under appeal’), by which the General Court dismissed its action for annulment of Commission Implementing Regulation (EU) 2021/1784 of 8 October 2021 imposing a definitive anti-dumping duty on imports of aluminium flat-rolled products originating in the People’s Republic of China (OJ 2021 L 359, p. 6) (‘the regulation at issue’).

2 Article 5 of 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) (‘the Customs Code’), entitled ‘Definitions’, provides:

‘For the purposes of the [Customs] Code, the following definitions shall apply:

(18) “customs debt” means the obligation on a person to pay the amount of import or export duty which applies to specific goods under the customs legislation in force;

(26) “release of goods” means the act whereby the customs authorities make goods available for the purposes specified for the customs procedure under which they are placed;

‘1. All exchanges of information, such as declarations, applications or decisions, between customs authorities and between economic operators and customs authorities, and the storage of such information, as required under the customs legislation, shall be made using electronic data-processing techniques.

4. By way of derogation from paragraph 1, the [European] Commission may adopt in exceptional cases decisions allowing one or several Member States to use means for the exchange and storage of information other than electronic data-processing techniques.

Such a decision on a derogation shall be justified by the specific situation of the Member State requesting it and the derogation shall be granted for a specific period of time. The derogation shall be reviewed periodically and may be extended for further specific periods of time upon further application by the Member State to which it is addressed. It shall be revoked where no longer justified.

The derogation shall not affect the exchange of information between the Member State to which it is addressed and other Member States nor the exchange and storage of information in other Member States for the purpose of the application of the customs legislation.’

‘1. Any person shall have the right to appeal against any decision taken by the customs authorities relating to the application of the customs legislation which concerns him or her directly and individually.

Any person who has applied to the customs authorities for a decision and has not obtained a decision on that application within the time limits referred to in Article 22(3) shall also be entitled to exercise the right of appeal.

(a) initially, before the customs authorities or a judicial authority or other body designated for that purpose by the Member States;

(b) subsequently, before a higher independent body, which may be a judicial authority or an equivalent specialised body, according to the provisions in force in the Member States.

3. The appeal shall be lodged in the Member State where the decision was taken or was applied for.

4. Member States shall ensure that the appeals procedure enables the prompt confirmation or correction of decisions taken by the customs authorities.’

‘1. The customs authorities may carry out any customs controls they deem necessary.

Customs controls may in particular consist of examining goods, taking samples, verifying the accuracy and completeness of the information given in a declaration or notification and the existence, authenticity, accuracy and validity of documents, examining the accounts of economic operators and other records, inspecting means of transport, inspecting luggage and other goods carried by or on persons and carrying out official enquiries and other similar acts.

2. Customs controls, other than random checks, shall primarily be based on risk analysis using electronic data-processing techniques, with the purpose of identifying and evaluating the risks and developing the necessary counter-measures, on the basis of criteria developed at national, [European] Union and, where available, international level.

3. Customs controls shall be performed within a common risk management framework, based upon the exchange of risk information and risk analysis results between customs administrations and establishing common risk criteria and standards, control measures and priority control areas.

Controls based upon such information and criteria shall be carried out without prejudice to other controls carried out in accordance with paragraph 1 or with other provisions in force.

4. Customs authorities shall undertake risk management to differentiate between the levels of risk associated with goods subject to customs control or supervision and to determine whether the goods will be subject to specific customs controls, and if so, where.

The risk management shall include activities such as collecting data and information, analysing and assessing risk, prescribing and taking action and regularly monitoring and reviewing that process and its outcomes, based on international, Union and national sources and strategies.’

‘For the purpose of customs controls, the customs authorities may verify the accuracy and completeness of the information given in a customs declaration, temporary storage declaration, entry summary declaration, exit summary declaration, re-export declaration or re-export notification, and the existence, authenticity, accuracy and validity of any supporting document and may examine the accounts of the declarant and other records relating to the operations in respect of the goods in question or to prior or subsequent commercial operations involving those goods after having released them. Those authorities may also examine such goods and/or take samples where it is still possible for them to do so.

Such controls may be carried out at the premises of the holder of the goods or of the holder’s representative, of any other person directly or indirectly involved in those operations in a business capacity or of any other person in possession of those documents and data for business purposes.’

‘1. For goods liable to import duty, a customs debt on import shall be incurred through non-compliance with any of the following:

(a) one of the obligations laid down in the customs legislation concerning the introduction of non-Union goods into the customs territory of the Union, their removal from customs supervision, or the movement, processing, storage, temporary storage, temporary admission or disposal of such goods within that territory;

(b) one of the obligations laid down in the customs legislation concerning the end-use of goods within the customs territory of the Union;

(c) a condition governing the placing of non-Union goods under a customs procedure or the granting, by virtue of the end-use of the goods, of duty exemption or a reduced rate of import duty.

2. The time at which the customs debt is incurred shall be either of the following:

(a) the moment when the obligation the non-fulfilment of which gives rise to the customs debt is not met or ceases to be met;

(b) the moment when a customs declaration is accepted for the placing of goods under a customs procedure where it is established subsequently that a condition governing the placing of the goods under that procedure or the granting of a duty exemption or a reduced rate of import duty by virtue of the end-use of the goods was not in fact fulfilled.’

‘1. A customs debt shall be incurred at the place where the customs declaration or the re-export declaration referred to in Articles 77, 78 and 81 is lodged.

In all other cases, the place where a customs debt is incurred shall be the place where the events from which it arises occur.

If it is not possible to determine that place, the customs debt shall be incurred at the place where the customs authorities conclude that the goods are in a situation in which a customs debt is incurred.

2. If the goods have been placed under a customs procedure which has not been discharged or when a temporary storage did not end properly, and the place where the customs debt is incurred cannot be determined pursuant to the second or third subparagraphs of paragraph 1 within a specific time limit, the customs debt shall be incurred at the place where the goods were either placed under the procedure concerned or were introduced into the customs territory of the Union under that procedure or were in temporary storage.

3. Where the information available to the customs authorities enables them to establish that the customs debt may have been incurred in several places, the customs debt shall be deemed to have been incurred at the place where it was first incurred.

4. If a customs authority establishes that a customs debt has been incurred under Article 79 or Article 82 in another Member State and the amount of import or export duty corresponding to that debt is lower that EUR 10 000, the customs debt shall be deemed to have been incurred in the Member State where the finding was made.’

‘1. The amount of import or export duty payable shall be determined by the customs authorities responsible for the place where the customs debt is incurred, or is deemed to have been incurred in accordance with Article 87, as soon as they have the necessary information.

2. Without prejudice to Article 48, the customs authorities may accept the amount of import or export duty payable determined by the declarant.’

‘1. The customs debt shall be notified to the debtor in the form prescribed at the place where the customs debt is incurred, or is deemed to have been incurred in accordance with Article 87.

The notification referred to in the first subparagraph shall not be made in any of the following cases:

(a) where, pending a final determination of the amount of import or export duty, a provisional commercial policy measure taking the form of a duty has been imposed;

(b) where the amount of import or export duty payable exceeds that determined on the basis of a decision made in accordance with Article 33;

(c) where the original decision not to notify the customs debt or to notify it with an amount of import or export duty at a figure less than the amount of import or export duty payable was taken on the basis of general provisions invalidated at a later date by a court decision;

(d) where the customs authorities are exempted under the customs legislation from notification of the customs debt.

2. Where the amount of import or export duty payable is equal to the amount entered in the customs declaration, release of the goods by the customs authorities shall be equivalent to notifying the debtor of the customs debt.

3. Where paragraph 2 does not apply, the customs debt shall be notified to the debtor by the customs authorities when they are in a position to determine the amount of import or export duty payable and take a decision thereon.

However, where the notification of the customs debt would prejudice a criminal investigation, the customs authorities may defer that notification until such time as it no longer prejudices the criminal investigation.

4. Provided that payment has been guaranteed, the customs debt corresponding to the total amount of import or export duty relating to all the goods released to one and the same person during a period fixed by the customs authorities may be notified at the end of that period. The period fixed by the customs authorities shall not exceed 31 days.’

‘1. No customs debt shall be notified to the debtor after the expiry of a period of three years from the date on which the customs debt was incurred.

2. Where the customs debt is incurred as the result of an act which, at the time it was committed, was liable to give rise to criminal court proceedings, the three-year period laid down in paragraph 1 shall be extended to a period of a minimum of five years and a maximum of 10 years in accordance with national law.

(a) an appeal is lodged in accordance with Article 44; such suspension shall apply from the date on which the appeal is lodged and shall last for the duration of the appeal proceedings; or

(b) the customs authorities communicate to the debtor, in accordance with Article 22(6), the grounds on which they intend to notify the customs debt; such suspension shall apply from the date of that communication until the end of the period within which the debtor is given the opportunity to express his or her point of view.

4. Where a customs debt is reinstated pursuant to Article 116(7), the periods laid down in paragraphs 1 and 2 shall be considered as suspended from the date on which the application for repayment or remission was submitted in accordance with Article 121, until the date on which the decision on the repayment or remission was taken.’

‘The customs authorities referred to in Article 101 shall enter in their accounts, in accordance with the national legislation, the amount of import or export duty payable as determined in accordance with that Article.

The first subparagraph shall not apply in cases referred to in the second subparagraph of Article 102(1).’

‘Customs declarations which comply with the conditions laid down in this Chapter shall be accepted by the customs authorities immediately, provided that the goods to which they refer have been presented to customs.’

‘The customs authorities may, for the purpose of verifying the accuracy of the particulars contained in a customs declaration which has been accepted:

‘Where the conditions for placing the goods under the procedure concerned are fulfilled and provided that any restriction has been applied and the goods are not subject to any prohibition, the customs authorities shall release the goods as soon as the particulars in the customs declaration have been verified or are accepted without verification.’

16 Regulation (EU) 2016/1036 of the European Parliament and of the Council of 8 June 2016 on protection against dumped imports from countries not members of the European Union (OJ 2016 L 176, p. 21), as amended by Regulation (EU) 2018/825 of the European Parliament and of the Council of 30 May 2018 (OJ 2018 L 143, p. 1) (‘Regulation 2016/1036’), provides in the first subparagraph of Article 5(1) thereof:

‘Except as provided for in paragraph 6, an investigation to determine the existence, degree and effect of any alleged dumping shall be initiated upon a written complaint by any natural or legal person, or any association not having legal personality, acting on behalf of the Union industry.’

‘In the Union interest, measures imposed pursuant to this Regulation may be suspended by a decision of the Commission in accordance with the advisory procedure referred to in Article 15(2) for a period of nine months. …

‘1. In cases where the number of Union producers, exporters or importers, types of product or transactions is large, the investigation may be limited to a reasonable number of parties, products or transactions by using samples which are statistically valid, on the basis of information available at the time of the selection, or to the largest representative volume of production, sales or exports which can reasonably be investigated within the time available.

2. The final selection of parties, types of products or transactions made under those sampling provisions shall rest with the Commission. However, in order to enable the selection of a representative sample preference shall be given to choosing a sample in consultation with, and with the consent of, the parties concerned, provided that such parties make themselves known and make sufficient information available within one week of initiation of the investigation.

3. In cases where the investigation has been limited in accordance with this Article, an individual margin of dumping shall, nevertheless, be calculated for any exporter or producer not initially selected who submits the necessary information within the time limits provided for in this Regulation, except where the number of exporters or producers is so large that individual examinations would be unduly burdensome and would prevent completion of the investigation in good time.

4. Where it is decided to sample and there is a degree of non-cooperation by some or all of the parties selected which is likely to materially affect the outcome of the investigation, a new sample may be selected.

However, if a material degree of non-cooperation persists or there is insufficient time to select a new sample, the relevant provisions of Article 18 shall apply.’

19 The background to the dispute, set out in paragraphs 2 to 6 of the order under appeal, may be summarised as follows.

20 On 14 August 2020, following a complaint lodged by an association representing European producers of aluminium flat-rolled products (‘the product concerned’), the Commission published a Notice of initiation of an anti-dumping proceeding concerning imports of aluminium flat-rolled products originating in the People’s Republic of China (OJ 2020 C 268, p. 5), under Article 5 of Regulation 2016/1036.

21 For the purposes of the anti-dumping proceedings and investigation, that institution decided, in accordance with Article 17 of Regulation 2016/1036, to rely on a sample of unrelated importers. The appellant, which is an importer of the product concerned, was included in that sample.

22 The appellant submitted its observations on several occasions during the proceedings, on its own initiative or in response to requests from the Commission, and was heard by the Commission on 10 May and 23 July 2021. In addition, on 28 May 2021, it requested the suspension or termination of the anti-dumping investigation on account of the situation on the aluminium market.

23 On 8 October 2021, the Commission adopted the regulation at issue, which imposes a definitive anti-dumping duty on imports of the product concerned originating in China at the following rates:

24 On the same day, that duty was suspended for a period of nine months by Commission Implementing Decision (EU) 2021/1788 of 8 October 2021 suspending the definitive anti-dumping duties imposed by Implementing Regulation 2021/1784 (OJ 2021 L 359, p. 105). However, it was reimposed with effect from 12 July 2022, pursuant to Article 2 of Commission Implementing Decision (EU) 2022/1178 of 7 July 2022 not to prolong the suspension of the definitive anti-dumping duties imposed by Implementing Regulation 2021/1784 (OJ 2022 L 183, p. 71).

25 By application lodged at the Registry of the General Court on 4 January 2022, the appellant brought an action for annulment of the regulation at issue.

26 By a separate document lodged at the General Court Registry on 18 March 2022, the Commission raised an objection of inadmissibility under Article 130 of the Rules of Procedure of the General Court.

27 By the order under appeal, the General Court dismissed that action as inadmissible. For the reasons set out in paragraphs 16 to 33 of the order under appeal, the Court held that since the regulation at issue entails implementing measures with regard to the appellant, within the meaning of the fourth paragraph of Article 263 TFEU, the latter must show that that regulation is of individual concern to it in order for its action to be declared admissible. For the reasons set out in paragraphs 36 to 54 of that order, the General Court considered that the regulation was not of individual concern to the appellant. The General Court ordered the appellant to pay the costs.

Procedure before the Court of Justice and the forms of order sought by the parties to the appeal

– refer the case back to the General Court for an examination of its action as to the substance; and

– order the Commission to bear the costs of the present appeal and of the proceedings at first instance.

30 In support of the appeal, the appellant relies on two grounds of appeal. The first ground of appeal is based on an error in law in the interpretation of the final limb of the fourth paragraph of Article 263 TFEU, erroneous qualification of the facts and distortion of the evidence. The second ground of appeal alleges an error in law in the interpretation of the fourth paragraph of Article 263 TFEU and erroneous qualification of the facts.

31 By its first ground of appeal, the appellant alleges that the General Court erred in law, in paragraphs 16 to 33 of the order under appeal, in interpreting the notion of ‘implementing measures’ in the last limb of the fourth paragraph of Article 263 TFEU and in qualifying the facts relating to that notion, and distorted the evidence the appellant submitted to support its argument that the regulation at issue does not entail implementing measures.

32 As far as concerns the notion of ‘implementing measures’, the appellant claims that, by finding that the mere existence of a national authority responsible for controlling the application of a directly applicable EU act is tantamount to a need for implementing measures, the General Court unduly restricted the application of the condition, laid down in the final limb of the fourth paragraph of Article 263 TFEU, according to which the regulatory act at issue must not entail implementing measures. Such an interpretation amounts to accepting that any EU regulatory act which is directly applicable in the Member States entails implementing measures because a national authority responsible for controlling the application of that kind of act always exists.

33 The appellant maintains that, in order to establish whether an EU regulatory act does not entail implementing measures, it must be determined whether it is necessary, for the authorities of the Member States, to adopt an act in order to confer legal effects to that regulatory act and contribute actively to its application and implementation. The mere fact that the national authority can decide ex post to open inspection proceedings and/or controls of that act cannot be regarded as an implementing measure.

34 As regards erroneous qualification of the facts and distortion of the evidence, the appellant claims that the General Court did not take into account the fact that the regulation at issue applies automatically in the legal order of the Member States and does not require any intervention by the customs authorities.

35 Under Article 79 of the Customs Code, the customs debt, as defined in Article 5, point 18, of that code, arises on import of the goods, through non-compliance with one of the obligations set out in the applicable customs legislation. The liability to pay that debt is therefore automatic either at the moment at which a debtor files its customs form or the moment at which the goods concerned were introduced into the customs territory of the European Union where the debtor failed to comply with all the customs formalities. The date on which the goods are introduced is also taken into account in the calculation of the three-year limitation period, laid down in Article 103 of the Customs Code, which applies to post-import controls and audits performed by the customs authorities. It follows from this, in the appellant’s view, that the regulation at issue applies in the legal order of the Member States without the customs authorities having to adopt implementing measures. If it were necessary for those authorities to adopt such a measure, the liability to pay the customs debt would arise only at the moment at which it was adopted.

36 In addition, Articles 101, 102 and 104 of the Customs Code cannot be read in isolation from the core principles of communication by electronic means, laid down in Article 6(1) and (4) of that code, and those governing the controls based on risk assessment methods performed by customs authorities, laid down in Article 46 of that code. Unless those authorities decide to carry out a control pursuant to Articles 46, 48 and 188 of that code, the amount of customs duties are determined and their payment is made by the importer him or herself, without involvement of the customs authorities since declarations filled out by the importer are considered to be immediately accepted by those authorities pursuant to Article 172(1) of the Customs Code. Controls by the customs authorities are either random or carried out on the basis of a risk assessment which takes into consideration the fact that that amount is determined by the importer.

37 The appellant claims that, whereas the judgment of 18 October 2018, Internacional de Productos Metálicos v Commission (C‑145/17 P, EU:C:2018:839, paragraph 52), requires the General Court to carry out its assessment by reference to the position of the person invoking the right to bring proceedings, the General Court did not take account of the fact that, in the present case, the customs authorities did not perform any action, carry out any control or send any specific notification of anti-dumping duties. Therefore, the General Court failed to examine the evidence submitted by the appellant in this respect.

38 The appellant claims, lastly, that the judgment of 10 December 2015, Kyocera Mita Europe v Commission (C‑553/14 P, EU:C:2015:805), is irrelevant in the present case since the provision on which that judgment was based has been replaced by the scheme under the Customs Code, a characteristic of which is the automatic acceptance of debtors’ declarations.

39 The Commission disputes the appellant’s arguments and contends that the first ground of appeal should be dismissed.

40 It must be recalled that the admissibility of an action brought by natural or legal persons against an act which is not addressed to them, in accordance with the fourth paragraph of Article 263 TFEU, is subject to the condition that they be accorded standing to bring proceedings, which arises in two situations. First, such proceedings may be instituted if the act is of direct and individual concern to those persons. Second, such persons may bring proceedings against a regulatory act not entailing implementing measures if that act is of direct concern to them (judgment of 29 June 2023, Airoldi Metalli v Commission, C‑467/22 P, EU:C:2023:526, paragraph 41 and the case-law cited).

41 The expression ‘which … does not entail implementing measures’, within the meaning of the final limb of the fourth paragraph of Article 263 TFEU, should be interpreted in the light of the objective of that provision which, as is clear from its origin, consists in preventing an individual from being obliged to infringe the law in order to have access to a court. Where a regulatory act directly affects the legal situation of a natural or legal person without requiring implementing measures, that person could be denied effective judicial protection if he or she did not have a legal remedy before the EU judicature for the purpose of challenging the legality of the regulatory act. In the absence of implementing measures, natural or legal persons, although directly concerned by the act in question, would be able to obtain a judicial review of that act only after having infringed its provisions, by pleading that those provisions are unlawful in proceedings initiated against them before the national courts (judgment of 29 June 2023, Airoldi Metalli v Commission, C‑467/22 P, EU:C:2023:526, paragraph 42 and the case-law cited).

42 By contrast, where a regulatory act entails implementing measures, judicial review of compliance with the EU legal order is ensured irrespective of whether those measures were adopted by the European Union or the Member States. Natural or legal persons who are unable, because of the conditions governing admissibility laid down in the fourth paragraph of Article 263 TFEU, to challenge a regulatory act of the European Union directly before the EU judicature are protected against the application to them of such an act by the ability to challenge the implementing measures which the act entails (judgment of 29 June 2023, Airoldi Metalli v Commission, C‑467/22 P, EU:C:2023:526, paragraph 43 and the case-law cited).

43 Where responsibility for the implementation of such acts lies with the institutions, bodies, offices or agencies of the European Union, natural or legal persons are entitled to bring a direct action before the EU judicature against the implementing acts under the conditions stated in the fourth paragraph of Article 263 TFEU, and to plead in support of that action, pursuant to Article 277 TFEU, the illegality of the basic act at issue. Where that implementation is a matter for the Member States, those persons may plead the invalidity of the basic act at issue before the national courts and tribunals and cause the latter to request a preliminary ruling from the Court of Justice, pursuant to Article 267 TFEU (judgment of 29 June 2023, Airoldi Metalli v Commission, C‑467/22 P, EU:C:2023:526, paragraph 44 and the case-law cited).

44 As the Court has held, whether a regulatory act entails implementing measures should be assessed by reference to the position of the person pleading the right to bring proceedings under the final 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 (judgment of 29 June 2023, Airoldi Metalli v Commission, C‑467/22 P, EU:C:2023:526, paragraph 45 and the case-law cited).

45 In the present case, in paragraph 27 of the order under appeal, the General Court described the process for determining the anti-dumping duties payable by the importers, as provided for in the Customs Code. That process comprises the submission into the electronic customs system, which is the responsibility exclusively of the national customs authorities, of the customs declaration, generating a decision accepting that declaration which takes the form of the allocation of a release code and which allows the goods concerned to be released for free circulation.

46 The General Court rightly set out in paragraph 22 of the order under appeal, first of all, that Article 101(1) of the Customs Code provides that the amount of import duty payable is determined by the customs authorities responsible for the place where the customs debt was incurred, without any exception for definitive anti-dumping duties being provided for in that regard. It subsequently stated that, pursuant to Article 104(1) of that code, the customs authorities referred to in Article 101 thereof are to enter in the accounts, in accordance with national legislation, the amount of import or export duty payable as determined in accordance with the latter article. Lastly, it observed that Article 102 of the Customs Code provides, in paragraph 1 thereof, that the customs debt is to be notified to the debtor by the customs authorities in the form prescribed at the place where the customs debt is incurred, and states, in paragraph 2 thereof, that where the amount of duty payable is equal to the amount entered in the customs declaration, release of the goods by the customs authorities is equivalent to notifying the debtor of the customs debt.

47 The General Court rightly inferred therefrom, in paragraphs 23 and 32 of the order under appeal, that regulations imposing definitive anti-dumping duties, such as the regulation at issue, entail implementing measures within the meaning of the fourth paragraph of Article 263 TFEU.

48 The arguments put forward by the appellant are not such as to call into question that finding.

49 In the first place, the appellant’s argument that the General Court wrongly found that the existence of an implementing measure, within the meaning of the fourth paragraph of Article 263 TFEU, is sufficiently established since the customs authorities are competent to carry out checks on declarations lodged by importers, is based on a misreading of the order under appeal.

50 In paragraph 27 of the order under appeal, the General Court ruled that the absence of control of the appellant’s goods was irrelevant. Moreover, as is apparent from paragraph 22 of the order under appeal, the General Court referred to Article 101(1) and Article 102(1) and (2) of the Customs Code, according to which the customs authorities responsible for the place where the customs debt is incurred, or is deemed to have been incurred in accordance with Article 87 of that code, determine the amount of import or export duty payable and notify debtors thereof. Those provisions apply even where those authorities do not carry out controls.

51 In the second place, the argument that Article 79 of the Customs Code, which defines the points in time at which the customs debt is incurred in the event of non-compliance with a customs obligation, demonstrates that the regulation at issue does not require implementing measures cannot succeed. Even in the situations covered by that provision, the fact remains that, under Article 101(1) and Article 102 of that code, it is the customs authorities responsible for the place where the customs debt is incurred, or is deemed to have been incurred in accordance with Article 87 of that code, which adopt implementing measures within the meaning of the fourth paragraph of Article 263 TFEU.

52 In the third place, the appellant complains, in essence, that the General Court failed to have regard to the fact that, under Article 172(1) of the Customs Code, declarations made by debtors are immediately accepted by the customs authorities by means of an electronic system provided for in Article 6 of that code and that, under Articles 46, 48 and 188 thereof, controls may be carried out after those declarations have been accepted.

53 It is apparent from Article 194(1) of the Customs Code that the customs authorities are to release the goods as soon as the particulars in the customs declaration have been verified or accepted without verification.

54 Therefore, even where the debtor’s declaration is accepted immediately by the customs authorities, they still adopt an implementing measure, within the meaning of the fourth paragraph of Article 263 TFEU, in the form of releasing the goods which, under Article 102(2) of that code, is equivalent to a decision notifying the debtor of the customs debt. The fact that, under Article 48 of that code, the customs authorities are not required to verify, after the release of the goods, the accuracy and completeness of the information provided in the customs declaration and that, under Article 6 of that code, it is an electronic system which generates a decision of the customs authorities accepting that declaration, taking the form of the allocation of a release code, does not deprive that decision of its ‘implementing measure’ nature, within the meaning of the fourth paragraph of Article 263 TFEU.

55 As the General Court correctly pointed out in paragraph 22 of the order under appeal, the Customs Code provides for measures with regard to importers liable to pay anti-dumping duties consisting in the notification to those importers of the customs debt to which those duties give rise. The regulation at issue therefore entails implementing measures, the invalidity of which may be raised before the national courts and cause the latter to request a preliminary ruling from the Court of Justice, pursuant to Article 267 TFEU. Thus, contrary to what the appellant claims, the General Court did not err in law in interpreting the final limb of the fourth paragraph of Article 263 TFEU.

56 In the fourth and last place, so far as concerns the appellant’s arguments that the General Court distorted the evidence it submitted, it is apparent from settled case-law that, when an appellant alleges a distortion of the evidence by the General Court, he or she must, pursuant to Article 256 TFEU, the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union and Article 168(1)(d) of the Rules of Procedure of the Court of Justice, indicate precisely the evidence alleged to have been distorted by the General Court and demonstrate the errors of appraisal which, in his or her view, led to that distortion. In addition, it is also settled case-law of the Court that the distortion must be obvious from the documents in the case file without there being any need to carry out a new assessment of the facts and the evidence (judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 86 and the case-law cited).

57 In the present case, although the appellant claimed a distortion of the facts by the General Court, it has not indicated in its appeal either the facts which the General Court is to have distorted or how exactly those facts are to have been distorted. As the Commission observed, the appellant has not produced specific evidence of how its imports of the product concerned were treated in that case by the customs authorities. It merely relied on an interpretation of the applicable customs rules, which was correctly dismissed by the General Court.

58 As regards the examination of the relevant provisions of the Customs Code, the appellant, first, does not in any way dispute the presentation of the content of those provisions by the General Court, but merely calls into question the General Court’s interpretation of them. Secondly, the appellant does not state in what way that interpretation by the General Court is manifestly erroneous.

59 It follows from all of those considerations that the first ground of appeal must be dismissed.

60 By the second ground of the appeal, which concerns paragraphs 37 to 54 of the order under appeal, the appellant claims that the General Court, by holding that it was not individually concerned by the regulation at issue, misinterpreted the fourth paragraph of Article 263 TFEU and incorrectly qualified the facts.

61 The appellant takes the view that, like the company in question in the case which gave rise to the judgment of 15 October 1998, Industrie des poudres sphériques v Council (T‑2/95, EU:T:1998:242, paragraphs 52 and 53), it is in a situation peculiar to it and which differentiates it, in the light of that regulation, from all other economic operators.

62 In the first place, the appellant claims to have demonstrated, contrary to what the General Court stated in paragraph 51 of the order under appeal, that it suffered economic repercussions as a result of the adoption of the regulation at issue.

63 It claims that 53% of its business is dependent on high-grade aluminium that is not available in the EU market, but which may be acquired from the Chinese exporters designated in the regulation at issue. The fact that the anti-dumping duty established by that regulation has a direct and individual effect on that part of the appellant’s business permits the inference that the conditions for admissibility of actions resulting from the judgment of 15 July 1963, Plaumann v Commission (25/62, EU:C:1963:17), as they have been interpreted to apply to regulatory acts, are met in the present case.

64 In the second place, the appellant submits that it participated in an active manner in the administrative procedure which led to the adoption of the regulation at issue. It claims that this is attested to by the fact that it is referred to, and even expressly named, numerous times in that regulation, in connection, inter alia, with substantive issues related to the dumping, the harm caused or the investigation procedure.

65 Furthermore, the appellant argues that, on account of its requests and action, as expressly mentioned by the Commission in Implementing Decision 2021/1788, the anti-dumping duty established by the regulation at issue has been suspended. Indeed, it was in the light of observations made and data submitted by the appellant during the anti-dumping procedure that the Commission deemed it necessary and appropriate to conduct a verification of the market conditions after the investigation period, aimed at verifying the existence of the conditions for the suspension of the anti-dumping measures pursuant to Article 14(4) of Regulation 2016/1036. The appellant’s pro-active participation in the investigation has thus led to the adoption of Implementing Decision 2021/1788 suspending the definitive anti-dumping duty. This is the third case during the last 15 years where a decision of that nature has been adopted and, probably, the first case where that has occurred due to the actions and requests of a given company. That uncommon role places the appellant in a situation peculiar to it of individual concern as against any other ‘ordinary’ importer which took part or did not take part in the investigation at issue.

66 The appellant also takes the view that the General Court erred in law in considering all the factors characterising the situation in the present case in isolation from one another. The General Court should have performed a holistic examination and reading of such factors and concluded that, taken together, they show that the appellant is in a situation peculiar to it as opposed to other importers of the product concerned. Such factors are so peculiar to it and so numerous that there is little likelihood of another importer finding itself in a situation identical to that of the appellant.

67 The Commission disputes the appellant’s arguments and contends that the second ground of appeal should be dismissed.

68 It is apparent from the settled case-law of the Court of Justice that although regulations imposing anti-dumping duties in respect of a product are legislative in nature and scope, in that they apply to all the economic operators concerned, it is not inconceivable that some of them may be of direct and individual concern (judgment of 3 December 2020, Changmao Biochemical Engineering v Distillerie Bonollo and Others, C‑461/18 P, EU:C:2020:979, paragraph 63 and the case-law cited).

69 Thus, in its case-law, the Court has identified certain categories of economic operators that may be individually concerned by a regulation imposing an anti-dumping duty, without prejudice to the possibility that other operators may be individually concerned by reason of certain attributes which are peculiar to them and which differentiate them from all other persons (judgment of 10 March 2021, Von Aschenbach & Voss, C‑708/19, EU:C:2021:190, paragraph 40 and the case-law cited).

70 The following may be individually concerned by a regulation imposing an anti-dumping duty: first, those of the producers and exporters of the product in question which have been charged with practising dumping on the basis of information relating to their business activities; second, importers of that product whose resale prices were taken into account for the construction of export prices and which are consequently concerned by the findings relating to the existence of dumping; and, third, importers associated with exporters of the product in question, particularly where the export price has been calculated on the basis of those importers’ resale prices on the EU market and where the anti-dumping duty itself has been calculated on the basis of those resale prices (judgment of 10 March 2021, Von Aschenbach & Voss, C‑708/19, EU:C:2021:190, paragraph 41 and the case-law cited).

71 Therefore, it should be noted that the status of importer cannot, on its own, be sufficient to support the view that an importer is individually concerned by a regulation imposing an anti-dumping duty. Even if associated with exporters of the product in question, an importer is individually concerned only if it is able to prove that information relating to its business activities has been taken into account for the purpose of establishing dumping or, failing that, that it has other attributes which are peculiar to it and which differentiate it from all other persons (judgment of 10 March 2021, Von Aschenbach & Voss, C‑708/19, EU:C:2021:190, paragraph 42 and the case-law cited).

72 In the present case, the appellant does not claim that it is an importer of the product concerned the resale prices of which were taken into account for the construction of export prices or an importer associated with exporters of that product, but claims that it is individually concerned by reason of certain other circumstances which are peculiar to it and which differentiate it, particularly when taken together, from all other economic operators.

73 It must be noted that, in paragraphs 41 to 53 of the order under appeal, the General Court examined those circumstances.

74 As regards the appellant’s participation in the proceedings which led to the adoption of the regulation at issue, the General Court rightly held, in paragraph 41 of the order under appeal, that, if there are no other factors giving rise to a particular situation which differentiates an undertaking which took part in anti-dumping proceedings from all other economic operators, such participation does not, of itself, give rise to a right enabling the appellant to bring a direct action against that regulation.

75 As regards the fact that the appellant’s name was mentioned in the recitals of the regulation at issue, the General Court correctly held, in paragraph 42 of the order under appeal, that the right to bring a direct action against that regulation cannot follow from that reference, which merely records its participation in the proceedings.

76 As regards the claim that the appellant influenced the result of the proceedings which led to the adoption of the regulation at issue, the General Court correctly held in paragraph 45 of the order under appeal that the appellant had not referred to any data of its own which was taken into account for the purpose of establishing the existence of dumping or calculating the anti-dumping duties. It inferred therefrom that the appellant had not established to the requisite legal standard that it was individually concerned by the regulation at issue on the basis of the use of such data enabling it to be differentiated from all other economic operators.

77 As regards the appellant’s claim that it suffered economic repercussions which differentiate it from all other economic operators since 53% of its business depended on imports of the product concerned, the General Court, first, considered, in paragraph 51 of the order under appeal, without ruling on whether that rate was accurate, that the appellant had not provided further details on the nature of those repercussions.

78 Next, in paragraph 52 of the order under appeal, the General Court observed that the supply of the product concerned from producers other than the Chinese exporting producers was not inconceivable, the appellant having indicated, in its replies to the questionnaire sent by the Commission to the sample of unrelated importers, that it purchased the product concerned mainly from European producers but also from Russia, Türkiye and South Africa.

79 Lastly, in paragraph 53 of the order under appeal, the General Court found, first, that ‘even if the dependence alleged and the highly damaging impact of the [regulation at issue] on the [appellant’s] business were proved’, the appellant did not claim that that situation was sufficient to differentiate it from all other operators importing the product concerned and, secondly, that it was possible that other operators import quantities comparable to, or even greater than, those of the appellant, or are just as concerned as, or more concerned than, the appellant by the regulation at issue.

80 In the first place, it is apparent from the latter paragraph of the order under appeal that the branch of the second ground of appeal alleging that the appellant demonstrated before the General Court that it was dependent on imports of the product concerned must be rejected as ineffective.

81 In the second place, it follows from the grounds of the order under appeal summarised in paragraphs 74 to 79 of the present judgment that, contrary to what the appellant claims, the General Court took into account the factors the appellant invokes in its second ground of appeal, which concern the contentions that it participated in the proceedings which led to the adoption of the regulation at issue, that it influenced the outcome of those proceedings and that its name is mentioned in that regulation. In addition, the General Court was also able, without erring in law or erring in the qualification of those factors, to hold that the appellant is not individually concerned, within the meaning of the fourth paragraph of Article 263 TFEU, by the regulation at issue.

82 In the third place, the branch of the second ground of appeal alleging that the General Court should have assessed all those factors holistically must be rejected as ineffective.

83 Even taken together, the factors relied on by the appellant do not differentiate it from all other importers of the product concerned. Those factors are closely linked to its status as an importer of the product concerned, which is not sufficient, in itself, as is apparent from the case-law referred to in paragraph 71 of the present judgment, to differentiate it from all other importers of that product. First, as the General Court observed in paragraph 53 of the order under appeal, the appellant has not established that it suffered economic repercussions which were substantially different from those suffered by the other importers of the product concerned. Second, the fact that it participated in the proceedings which led to the adoption of the regulation at issue and that its name is therefore mentioned in that regulation merely reflects its activity to mitigate the effects of the measures taken following those proceedings.

84 Lastly, in the fourth place, so far as concerns the claim that the General Court did not take account of certain facts in relation to the imports made by the appellant, the latter has neither indicated precisely the evidence or facts which were allegedly distorted nor shown the errors of appraisal which, in its view, led to such a distortion, as required by the case-law cited in paragraph 56 of the present judgment. Consequently, that claim is inadmissible.

85 Having regard to all those considerations, the second ground of appeal must be rejected as in part inadmissible, in part ineffective and in part unfounded.

87 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court is to make a decision as to the costs.

88 Under Article 138(1) of those rules, applicable to proceedings on appeal by virtue of Article 184(1) thereof, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

89 In the present case, since Airoldi Metalli has been unsuccessful, it must be ordered, in addition to bearing its own costs, to pay the costs incurred by the Commission, in accordance with the form of order sought by the Commission.

2. Orders Airoldi Metalli SpA, in addition to bearing its own costs, to pay those incurred by the European Commission.

Company	Definitive anti-dumping duty rate (%)
Jiangsu Alcha Aluminum Group Co., Ltd	14.3
Nanshan Group: – Shandong Nanshan Aluminium Co., Ltd, – Yantai Nanshan Aluminum New Material Co., Ltd, – Longkou Nanshan Aluminum Rolling New Material Co., Ltd, – Yantai Donghai Aluminum Foil Co., Ltd	19.1
Xiamen Xiashun Aluminium Foil Co., Ltd	21.4
Other cooperating companies (Annex)	19.0
All other companies	24.6

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Airoldi Metalli v Commission (Appeal - Dumping - Imports of aluminium flat-rolled products originating in China - Judgment) [2023] EUECJ C-764/22P (19 October 2023) URL: http://www.bailii.org/eu/cases/EUECJ/2023/C76422P.html Cite as: EU:C:2023:800, [2023] EUECJ C-764/22P, ECLI:EU:C:2023:800

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