Corte di giustizia UE n. 952/2018

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 2 July 2018 ( * ) (Action for annulment — [OSCURATO:PERSONA] union — Authorisation for inward processing — Risk of adverse effect on the essential interests of EU producers — [OSCURATO:PERSONA] 211(6) of [OSCURATO:PERSONA] (EU) No 952/2013 — Examination of the economic conditions — Scope of the [OSCURATO:PERSONA]’s conclusions — Act not open to challenge — Inadmissibility) [OSCURATO:PERSONA] T‑577/17, thyssenKrupp [OSCURATO:PERSONA] GmbH, established in Gelsenkirchen (Germany), thyssenKrupp [OSCURATO:PERSONA], established in Isbergues (France), represented by M. Günes, lawyer applicants, v [OSCURATO:PERSONA], represented by J.-F. Brakeland and F. Clotuche‑Duvieusart, acting as Agents, defendant, ACTION under [OSCURATO:PERSONA] 263 TFEU for the annulment of the [OSCURATO:PERSONA]’s alleged decision ostensibly contained in the minutes of the sixth meeting of the [OSCURATO:PERSONA] ‘[OSCURATO:PERSONA] other than transit’ of 2 May 2017 concluding that the essential interests of EU producers would not be adversely affected by an authorisation for inward processing of certain grain-oriented electrical steel products requested by Euro-[OSCURATO:PERSONA] BV, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of G. [OSCURATO:PERSONA], [OSCURATO:PERSONA], S. Papasavvas and O. Spineanu-Matei (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: E. Coulon, makes the following [OSCURATO:PERSONA] to the dispute 1 On 21 February 2017, Euro-[OSCURATO:PERSONA] BV (‘EMS’), in accordance with [OSCURATO:PERSONA] 211(1)(a) of [OSCURATO:PERSONA] (EU) No 952/2013 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 9 October 2013 laying down the [OSCURATO:PERSONA] (OJ 2013 L 269, p. 1) (‘the [OSCURATO:PERSONA]’), submitted to the [OSCURATO:PERSONA] customs authorities an application for authorisation for inward processing of certain types of grain-oriented electrical steel originating in Japan (‘the application for authorisation’). 2 On 27 February 2017, the [OSCURATO:PERSONA] customs authorities, acting pursuant to [OSCURATO:PERSONA] 259(1) of [OSCURATO:PERSONA] (EU) 2015/2447 of 24 November 2015 laying down detailed rules for implementing certain provisions of the [OSCURATO:PERSONA] (OJ 2015 L 343, p. 558) (‘the implementing regulation’), transmitted the file to the [OSCURATO:PERSONA], requesting it to examine the economic conditions, which they considered necessary, and ‘to conclude that [they were] met and [that] the authorisation [could] be granted’ (‘the request for examination’). 3 On 13 March 2017, the competent [OSCURATO:PERSONA] services distributed among the members of the ‘[OSCURATO:PERSONA] (TCG) the file that had been transmitted by the [OSCURATO:PERSONA] authorities, which contained the contact details of the 27 other customs authorities within the [OSCURATO:PERSONA], and requested position papers from the [OSCURATO:PERSONA] as well as information and observations from the EU producers of grain-oriented electrical steel. 4 On 30 March 2017, the [OSCURATO:PERSONA] invited the representatives of the [OSCURATO:PERSONA] in the customs expert group established by the [OSCURATO:PERSONA] in accordance with [OSCURATO:PERSONA] 259(4) of the implementing regulation (‘the customs expert group’) to the sixth meeting of the [OSCURATO:PERSONA] ‘[OSCURATO:PERSONA] other than transit’ of that group (‘the sixth meeting’), during which the request for examination was to be considered. 5 On 2 May 2017, the sixth meeting took place, during which the request for examination was discussed. 6 At point 2 of the minutes of the sixth meeting (‘the minutes of 2 May 2017’), concerning the request for examination, reference is made (i) to the positions of representatives of certain [OSCURATO:PERSONA] and that of the [OSCURATO:PERSONA] on the application for authorisation; (ii) to the lack of consensus between the members of the group on the economic conditions and the voting procedure that followed (17 votes in favour, 10 votes against, 0 abstentions and 1 [OSCURATO:PERSONA] not present) and (iii) to the [OSCURATO:PERSONA]’s conclusion that the economic conditions were met. 7 On 2 May 2017, following the conclusion on the same day on the economic conditions, the [OSCURATO:PERSONA] customs authority issued the authorisation for inward processing to EMS for the period from 2 May 2017 to 1 May 2020. 8 On 12 July 2017, the applicants, thyssenkrupp [OSCURATO:PERSONA] GmbH and thyssenkrupp [OSCURATO:PERSONA], submitted to the [OSCURATO:PERSONA] customs authority notices of opposition to the granting of the authorisation for inward processing to EMS. In their preliminary decisions of 11 December 2017 on those oppositions, the [OSCURATO:PERSONA] customs authorities declared that they were ‘obliged’ (‘verplicht’) to grant the authorisation requested ‘on the conditions imposed by the [OSCURATO:PERSONA]’ because the authorities had to ‘take account of the conclusion reached about the economic conditions’. Procedure and forms of order sought 9 By application lodged at the Registry of the [OSCURATO:PERSONA] on 25 August 2017, the applicants brought the present action. 10 By a separate document lodged at the Registry of the [OSCURATO:PERSONA] on 6 November 2017, the [OSCURATO:PERSONA] raised a plea of inadmissibility under [OSCURATO:PERSONA] 130 of the Rules of Procedure of the [OSCURATO:PERSONA]. The applicants lodged their observations on that plea on 8 January 2018. 11 By document lodged at the Registry of the [OSCURATO:PERSONA] on 9 November 2017, EMS requested leave to intervene in the present proceedings in support of the form of order sought by the [OSCURATO:PERSONA]. 12 The applicants claim that the [OSCURATO:PERSONA] should: –        annul the [OSCURATO:PERSONA]’s conclusion that the essential interests of EU producers would not be adversely affected by an authorisation for inward processing of certain grain-oriented electrical steel products; –        order the [OSCURATO:PERSONA] to pay the costs. 13 In its plea of inadmissibility, the [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: –        dismiss the action as being inadmissible; –        order the applicants to pay the costs. 14 In their observations on the plea of inadmissibility, the applicants claim that the [OSCURATO:PERSONA] should: –        dismiss the plea of inadmissibility; –        prescribe new time limits for further steps in the proceedings to deal with the substance of the case; –        annul the [OSCURATO:PERSONA]’s conclusion that the essential interests of EU producers would not be adversely affected by an authorisation for inward processing of certain grain-oriented electrical steel products; –        order the [OSCURATO:PERSONA] to pay the costs. Law 15 [OSCURATO:PERSONA] 130 of the Rules of Procedure, on application by the defendant, the [OSCURATO:PERSONA] may decide on inadmissibility without going to the substance of the case. In the present case, as the [OSCURATO:PERSONA] has applied for a decision on inadmissibility, the [OSCURATO:PERSONA], finding that it has sufficient information from the documents in the case file, has decided to rule on that application without taking further steps in the proceedings. 16 In support of the objection to admissibility, the [OSCURATO:PERSONA] principally raises a plea of inadmissibility based on the absence of an act against which an action for annulment can be brought under [OSCURATO:PERSONA] 263 TFEU and, in the alternative, a plea of inadmissibility based on the absence of a direct and individual concern on the part of the applicants, as provided for in the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU. 17 The applicants dispute the [OSCURATO:PERSONA]’s arguments. 18 In support of the plea of inadmissibility raised as a principal argument, the [OSCURATO:PERSONA] first submits that the applicants have not indicated any act that it has allegedly adopted. Second, it submits, in essence, that in the present case there is no challengeable act because (i) it has no decision-making power in customs matters and (ii) the conclusions on the economic conditions do not produce binding legal effects. 19 In response, the applicants state at the outset that, in paragraph 2 of the application, they precisely identified the act that is challenged as being the [OSCURATO:PERSONA]’s conclusion and that the use of the word ‘conclusion’ corresponds to the terminology used by the implementing regulation. Next, the applicants refute the [OSCURATO:PERSONA]’s arguments relating to the absence of a challengeable act on the ground, in essence, of an alleged change in the new customs legislation, seen from the perspective of the legislature as regards its role when examining the economic conditions and legal effects of its conclusions at the end of that examination. Finally, they criticise the [OSCURATO:PERSONA] on the ground that it relied on the judgment of 11 May 2006, [OSCURATO:PERSONA] (C‑11/05, EU:C:2006:312), which, they submit, is no longer relevant for the new customs legislation. Identification of an act of the [OSCURATO:PERSONA] 20 As a preliminary point, it is necessary to clarify the [OSCURATO:PERSONA]’s claim relating to the alleged absence of identification of an act of which it is allegedly the author. 21 In that respect, it should be pointed out that, contrary to what the [OSCURATO:PERSONA] submits, (i) the applicants identified clearly, in paragraph 1 of the application and in the form of order sought, the act under challenge as being ‘the [OSCURATO:PERSONA]’s conclusion that the essential interests of [OSCURATO:PERSONA] producers would not be adversely affected by an authorisation for inward processing of certain grain-oriented electrical steel products (GOES) [Ref. Ares(2017) 3010674 — 15/06/2017]’; and (ii) at paragraph 2 of the application, they indicated that the ‘challenged act of the [OSCURATO:PERSONA] is contained in [OSCURATO:PERSONA] document [Ref. Ares(2017) 3010674 dated 15 June 2017], which was published [on] or after 15 June 2017 in the online Register of [OSCURATO:PERSONA] ... entitled “[M]inutes of the 6th meeting of the [OSCURATO:PERSONA] ‘[OSCURATO:PERSONA] other than transit’ (CEG/SPE/6)”’. 22 Although it is apparent from the minutes of 2 May 2017 that the wording of the conclusion reached at the 6th meeting differs from that mentioned in paragraphs 1 to 54 of the application, it is nevertheless clear that the subject matter of the present proceedings does indeed concern the [OSCURATO:PERSONA]’s conclusion, reached on 2 May 2017 at the 6th meeting, in the examination of the economic conditions required by the [OSCURATO:PERSONA] customs authorities, according to which ‘the economic conditions [were] met’ (‘the contested conclusion’). 23 Consequently, the [OSCURATO:PERSONA] errs in its assertion that the applicants have not identified the act of which it is allegedly the author. Existence of a challengeable act 24 It is settled case-law that any provisions adopted by the institutions of the [OSCURATO:PERSONA], whatever their form, which are intended to have binding legal effects, are regarded as ‘challengeable acts’, for the purposes of [OSCURATO:PERSONA] 263 TFEU (see judgment of 25 October 2017, Romania v [OSCURATO:PERSONA] , C‑599/15 P, EU:C:2017:801, paragraph 47 and the case-law cited). 25 By contrast, any act not producing binding legal effects, such as preparatory acts, purely implementing measures, mere recommendations, opinions and, in principle, mere instructions, fall outside the scope of the judicial review provided for in [OSCURATO:PERSONA] 263 TFEU (see judgment of 12 September 2006, [OSCURATO:PERSONA] and Others v [OSCURATO:PERSONA] , C‑131/03 P, EU:C:2006:541, paragraph 55 and the case-law cited; judgments of 17 July 2008, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑521/06 P, EU:C:2008:422, paragraph 42, and of 26 January 2010, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑362/08 P, EU:C:2010:40, paragraph 52). 26 It would be otherwise only if the acts adopted in the course of the preparatory proceedings not only bore all the legal characteristics described in paragraph 25 above, but were themselves the culmination of a special procedure distinct from that intended to permit the EU institution, body, office or agency to take a decision on the substance of the case (judgment of 11 November 1981, IBM v [OSCURATO:PERSONA], 60/81, EU:C:1981:264, paragraph 11). 27 Finally, it should be noted that, whilst measures of a purely preparatory character may not themselves be the subject of an action for annulment, any legal defects therein may be relied upon in an action directed against the definitive act for which they represent a preparatory step (judgment of 11 November 1981, IBM v [OSCURATO:PERSONA], 60/81, EU:C:1981:264, paragraph 12). 28 In order to ascertain whether a contested measure produces binding legal effects, it is necessary to look to its substance. Those effects must be assessed in accordance with objective criteria, such as the contents of that measure, taking into account, as appropriate, the context in which that measure was adopted and the powers of the institution which adopted it (see judgment of 25 October 2017, Romania v [OSCURATO:PERSONA], C‑599/15 P, EU:C:2017:801, paragraph 48 and the case-law cited). 29 It is in the light of those considerations that it is appropriate to examine whether the contested conclusion is an act against which an action may be brought, within the meaning of [OSCURATO:PERSONA] 263 TFEU. 30 To that end, as a preliminary step, the contested conclusion should be placed in its legal and factual context. 31 First of all, it should be noted that the inward processing procedure is a customs procedure which derogates from the ordinary rules of law, with economic implications. Therefore, as provided for in [OSCURATO:PERSONA] 211(1)(a) of the [OSCURATO:PERSONA], an authorisation from the customs authorities is required when using that procedure. 32 Among the cumulative conditions necessary to obtain an authorisation for inward processing, [OSCURATO:PERSONA] 211(4)(b) of the [OSCURATO:PERSONA] provides that such authorisation is to be granted only if ‘the essential interests of [OSCURATO:PERSONA] producers would not be adversely affected ... (economic conditions)’. 33 Furthermore, it is apparent from [OSCURATO:PERSONA] 211(6) of the [OSCURATO:PERSONA] that, following an application for an authorisation to place goods under the inward processing procedure, where evidence exists that the essential interests of EU producers are likely to be adversely affected by that authorisation, an examination of the economic conditions is to take place at EU level. 34 It should be noted that, although [OSCURATO:PERSONA] 211(6) the [OSCURATO:PERSONA] provides that an examination of the economic conditions is to take place at EU level, it does not indicate what objective is being pursued by the establishment of the examination of the economic conditions at EU level or what the role of the [OSCURATO:PERSONA] during that examination may be. 35 In that respect, it should, however, be made clear that, under the [OSCURATO:PERSONA]’s implementing powers pursuant to [OSCURATO:PERSONA] 213 of the [OSCURATO:PERSONA], through the implementing regulation the [OSCURATO:PERSONA] has established the procedural rules applicable to the examination of the economic conditions that takes place at EU level, as provided for in [OSCURATO:PERSONA] 211(6) the [OSCURATO:PERSONA]. 36 Thus, in accordance with [OSCURATO:PERSONA] 259(1) of the implementing regulation, where, following an application for authorisation to place goods under the inward processing procedure, an examination of the economic conditions at EU level is required in accordance with [OSCURATO:PERSONA] 211(6) of the code, the customs authority competent for taking a decision on the application is required to transmit the file to the [OSCURATO:PERSONA] without delay requesting such examination. Similarly, in accordance with [OSCURATO:PERSONA] 259(4) of the implementing regulation, the [OSCURATO:PERSONA] is required to establish an expert group, composed of the representatives of the [OSCURATO:PERSONA], which must advise it on whether the economic conditions are fulfilled or not. 37 On the basis of [OSCURATO:PERSONA] 259(4) of the implementing regulation, the [OSCURATO:PERSONA] established an expert group, which constitutes an informal advisory body operating on a permanent basis, subject to the horizontal rules established by [OSCURATO:PERSONA] C(2016) 3301 of 30 May 2016 establishing horizontal rules on the creation and operation of [OSCURATO:PERSONA] expert groups, linked to [OSCURATO:PERSONA] communication C(2016) 3300 of 30 May 2016 on the framework for [OSCURATO:PERSONA] expert groups: horizontal rules and public register (‘horizontal rules on expert groups’). 38 In accordance with the horizontal rules on expert groups, the role of those groups is to advise the [OSCURATO:PERSONA], in particular on the application of EU laws, policies and programmes, on coordination and cooperation with the [OSCURATO:PERSONA]. 39 On the basis of the horizontal rules on expert groups, the [OSCURATO:PERSONA] adopted the ‘terms of reference’ of the [OSCURATO:PERSONA] and the rules of procedure of that group, in accordance with which the examination of the economic conditions is carried out in the meetings of the ‘[OSCURATO:PERSONA] other than transit’ [OSCURATO:PERSONA] of that group, called and chaired by the [OSCURATO:PERSONA]. During those meetings, experts representing the [OSCURATO:PERSONA] set out their positions on the application for authorisation and on the economic conditions and adopt an opinion on the economic conditions by consensus or, in the absence of consensus, they vote. In that respect, under [OSCURATO:PERSONA] 8(d) of those rules of procedure, when voting, the opinion results from the majority of the votes cast, abstentions not being taken into account. However, if the majority of the members present and voting are in favour of the application, the economic conditions are to be regarded as fulfilled. [OSCURATO:PERSONA] 8(e) of the rules requires [OSCURATO:PERSONA] which vote against to give the reasons for their position (‘the examination procedure’). [OSCURATO:PERSONA] then, on the basis of that opinion, concludes whether or not the economic conditions are fulfilled. 40 It should be pointed out that, pursuant to [OSCURATO:PERSONA] 259(5) of the implementing regulation, the conclusion reached on the economic conditions are to be taken into account by the customs authority concerned and by any other customs authority dealing with similar applications or authorisations. 41 In the present case, as has been indicated in paragraphs 1 and 2 above, EMS submitted the application for authorisation in order to benefit from the exemption from import duties for certain types of grain-oriented electrical steel originating in Japan. [OSCURATO:PERSONA] customs authorities, finding that the examination of the economic conditions at EU level was necessary, pursuant to [OSCURATO:PERSONA] 259(1) of the implementing regulation, transmitted the file to the [OSCURATO:PERSONA], requesting it to proceed with the examination. 42 It is common ground that the examination procedure (see paragraph 39 above) was followed in the present case. 43 It is apparent from the minutes of 2 May 2017 that, first, after an exchange of views with regard to the application for authorisation submitted by EMS, and the presentation by the [OSCURATO:PERSONA] of three remarks on the specific characteristics of the authorisation applied for, the [OSCURATO:PERSONA] initially expressed the opinion that the case was to be considered as being a unique case and, second, expressed their opinion on the economic conditions. Next, in the absence of consensus, the representatives of the [OSCURATO:PERSONA] voted and the [OSCURATO:PERSONA] collected the results: 17 votes in favour, 10 votes against, 0 abstentions and 1 [OSCURATO:PERSONA] not represented. Finally, at the end of the meeting, the [OSCURATO:PERSONA] concluded that the economic conditions were fulfilled. 44 It is in the light of that factual and legal context that it is necessary, first, to establish the role played by the [OSCURATO:PERSONA] during that examination and, second, to assess the scope of the conclusions which it reaches at the end of that examination. The role of the [OSCURATO:PERSONA] during the examination of the economic conditions 45 As regards the role of the [OSCURATO:PERSONA] during the examination of the economic conditions, it is not apparent from the legal context, as set out in paragraphs 31 to 40 above, that the [OSCURATO:PERSONA] played a decisive role during that examination. 46 In that regard, it must be pointed out at the outset that it may not be presumed that the [OSCURATO:PERSONA] has power to adopt binding decisions in the absence of a specific provision in the Treaty or in binding acts adopted by the institutions (see judgment of 13 December 1990, Nefarma v [OSCURATO:PERSONA], T‑113/89, EU:T:1990:82, paragraph 69 and the case-law cited). 47 Furthermore, it is apparent from case-law that views expressed by the [OSCURATO:PERSONA] to the authorities of a [OSCURATO:PERSONA] in areas in which the [OSCURATO:PERSONA] has no power to adopt binding decisions are mere opinions with no legal effect (see judgment of 13 December 1990, Nefarma v [OSCURATO:PERSONA], T‑113/89, EU:T:1990:82, paragraph 68 and the case-law cited). 48 In that regard, first, although the [OSCURATO:PERSONA] is empowered, under [OSCURATO:PERSONA] 212(c) of the [OSCURATO:PERSONA], to adopt delegated acts in order to determine the cases in which the economic conditions are deemed to be fulfilled, and although, under [OSCURATO:PERSONA] 213 of that code, it has had implementing powers conferred on it in order to specify the procedural rules relating to the examination of the economic conditions that takes place at EU level, neither the [OSCURATO:PERSONA] nor [OSCURATO:PERSONA] (EU) 2015/2446 of 28 July 2015 supplementing the [OSCURATO:PERSONA] as regards detailed rules concerning certain provisions (OJ 2015 L 343, p. 1), nor the implementing regulation confer on it the power to adopt decisions, let alone decisions that are binding on the national authorities in that examination. 49 Next, the [OSCURATO:PERSONA] does not in any way require the [OSCURATO:PERSONA] itself to carry out the examination of the economic conditions. The role of the [OSCURATO:PERSONA] during that examination is purely procedural in nature, designed to ensure uniform conditions for implementing the [OSCURATO:PERSONA], within the limits of the powers conferred on it by [OSCURATO:PERSONA] 213 of the code. That role is linked to the unique position enjoyed by the [OSCURATO:PERSONA] to gather the relevant information and observations of the experts of the [OSCURATO:PERSONA] as regards the manner in which the interests of EU producers could be affected by the requested authorisation, in order to make the information and observations available to the customs authorities concerned. Such cooperation is not to be confused with a provision for decisions taken at EU level in which the conclusions reached in an informal context would be binding on the [OSCURATO:PERSONA]. 50 Finally, it is not apparent from the examination procedure put in place by the [OSCURATO:PERSONA] under the implementing powers delegated pursuant to [OSCURATO:PERSONA] 213 of the [OSCURATO:PERSONA], as set out in paragraphs 39 and 43 above, whether, in addition to taking the votes of the representatives of the [OSCURATO:PERSONA] in the [OSCURATO:PERSONA] and counting the votes cast, the [OSCURATO:PERSONA] must express its opinion or has the slightest power to assess the question as to whether the economic conditions are fulfilled. 51 As regards the applicants’ argument concerning the different function that the [OSCURATO:PERSONA] has, in light of the new customs legislation, in comparison with the committee of [OSCURATO:PERSONA] (EEC) No 2913/92 of 12 October 1992 establishing the [OSCURATO:PERSONA] (OJ 1992 L 302, p. 1) (‘the former [OSCURATO:PERSONA]’), in that its function is not ‘merely to ensure close and effective cooperation’ but rather to ‘ensure uniform conditions’ for the implementation of the [OSCURATO:PERSONA], including with respect to the examination of the economic conditions, that argument should be rejected for the following reasons. 52 First, it is apparent from recital 5 of the [OSCURATO:PERSONA] that the need to ensure uniform conditions for the implementation of the [OSCURATO:PERSONA] justified the conferral of implementing powers on the [OSCURATO:PERSONA], under [OSCURATO:PERSONA] 213 of that code, in order to specify the procedural rules relating to the examination of the economic conditions that takes place at EU level. However, that provision does not in any way impose on the [OSCURATO:PERSONA] a role other than that of coordinator of the phase of examination of the economic conditions. 53 Second, it is important to note that, even under the former [OSCURATO:PERSONA] and [OSCURATO:PERSONA] (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of the former [OSCURATO:PERSONA] (OJ 1993 L 253, p. 1), the examination of the economic conditions was also necessary for applications for authorisation that were similar to that in the present case. In that context, although the examination was carried out, at EU level, by the committee of the former [OSCURATO:PERSONA], which drew conclusions and assisted the [OSCURATO:PERSONA] in accordance with Articles 247 to 249 of the former [OSCURATO:PERSONA], it was only a form of close and effective cooperation between the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] and those conclusions were intended to inform the customs authorities as to the economic conditions (judgment of 11 May 2006, [OSCURATO:PERSONA] , C‑11/05, EU:C:2006:312, paragraphs 28 and 29). 54 Third, it is apparent from the legal and factual context set out in paragraphs 31 to 40 above that, in the new customs legislation, only the author of the conclusion made at the end of the examination of the economic conditions has changed, namely now the [OSCURATO:PERSONA], instead of the committee of the former [OSCURATO:PERSONA], with the result that the objective pursued by that examination, as has been set out in paragraph 53 above, remains, for its part, identical. 55 It must therefore be held that the [OSCURATO:PERSONA]’s conclusions, made following the examination of the economic conditions that took place at EU level in accordance with [OSCURATO:PERSONA] 211(6) of the [OSCURATO:PERSONA], do not have a legal basis empowering the [OSCURATO:PERSONA] to adopt a decision which could be binding on the customs authorities of the [OSCURATO:PERSONA] and end up having a scope that is similar to that of the conclusions made by the committee of the former [OSCURATO:PERSONA]. 56 Therefore, in the absence of any provision empowering the [OSCURATO:PERSONA] to adopt a measure directing the competent national authority to follow its conclusions, the latter can be regarded only as having an informative value, the role of which is to assist the competent national authorities to take decisions, and not to impose constraints on them (see, to that effect, and by analogy, judgment of 11 May 2006, [OSCURATO:PERSONA], C‑11/05, EU:C:2006:312, paragraph 30). Scope of the conclusions made at the end of the examination of the economic conditions and the conclusions to be drawn therefrom by the customs authorities 57 As regards the scope of the conclusions made at the end of the examination of the economic conditions, it should be noted that, as has been set out in paragraph 40 above, the first subparagraph of [OSCURATO:PERSONA] 259(5) of the implementing regulation is worded as follows: ‘The conclusion reached on the economic conditions shall be taken into account by the customs authority concerned and by any other customs authority dealing with similar applications or authorisations’. 58 The wording of the first subparagraph of [OSCURATO:PERSONA] 259(5) of the implementing regulation reproduces verbatim that of [OSCURATO:PERSONA] 504(4) of [OSCURATO:PERSONA] 2454/93, as amended by, inter alia, [OSCURATO:PERSONA] (EC) No 993/2001 of 4 May 2001 (OJ 2001 L 141, p. 1), (‘the former implementing regulation’). 59 In that respect, as regards the former implementing regulation, in the judgment of 11 May 2006, [OSCURATO:PERSONA] (C‑11/05, EU:C:2006:312), the [OSCURATO:PERSONA] interpreted, inter alia, the phrase ‘the committee’s conclusion shall be taken into account by the customs authorities’ set out in [OSCURATO:PERSONA] 504(4) of the former implementing regulation as meaning that it was not apparent from the wording of that article that the committee’s conclusions were binding on the national customs authorities. [OSCURATO:PERSONA] added that, according to the wording of that provision, the committee’s conclusion needed only to be taken into account by the customs authorities dealing with the application, as well as by any other customs authorities dealing with similar authorisations or applications. Furthermore, that provision did not by any means require the national customs authorities automatically to go along with the committee’s conclusion. The national customs authorities could disregard the conclusion adopted by the committee provided that they gave reasons for their decision in that respect (judgment of 11 May 2006, [OSCURATO:PERSONA] (C‑11/05, EU:C:2006:312, paragraphs 26 and 27). 60 Consequently, in so far as the first subparagraph of [OSCURATO:PERSONA] 259(5) of the implementing regulation replaces, within the EU legal order, [OSCURATO:PERSONA] 504(4) of the former implementing regulation, the interpretation given by the [OSCURATO:PERSONA] in respect of that latter article is also valid for the interpretations of the former, given that those provisions may be regarded as equivalent (see, to that effect and by analogy, judgment of 14 September 2017, Nogueira and Others , C‑168/16 and C‑169/16, EU:C:2017:688, paragraph 45 and the case-law cited). 61 The authority attaching to judgments of the [OSCURATO:PERSONA] of Justice when, within the jurisdiction conferred upon it by [OSCURATO:PERSONA] 267 TFEU, it interprets a provision of EU law, explaining the meaning and scope of that provision as it should have been understood and applied since its entry into force, having regard in particular to the principles of continuity of the legal order and legal certainty, also applies to identical legislative solutions contained in subsequent legislation. 62 Furthermore, as has been set out in paragraph 54 above, it is not apparent from the new customs legislation that, as well as the change of the author of the conclusion made at the end of the examination of the economic conditions, the scope of that conclusion has been modified. 63 As indicated in paragraph 58 above, in so far as the expression ‘shall be taken into account by the customs authority’ set out in [OSCURATO:PERSONA] 504(4) of the former implementing regulation is repeated verbatim in the wording of [OSCURATO:PERSONA] 259(5) of the implementing regulation, there are no grounds on which to conclude that, in the new customs legislation, the scope of the conclusion on the economic conditions has changed. Moreover, if the new customs legislation had designed a system in which the national customs authorities are bound by the conclusions on the economic conditions made at EU level, the implementing regulation would have made express provision for this. 64 Accordingly, it follows from the foregoing that, as the [OSCURATO:PERSONA] held in the judgment of 11 May 2006, [OSCURATO:PERSONA] (C‑11/05, EU:C:2006:312), as regards the conclusions of the [OSCURATO:PERSONA] made under the former legislation, [OSCURATO:PERSONA] 259(5) of the implementing regulation must be interpreted as meaning that the conclusions for which it provides do not have legally binding force and, therefore, are not binding on the national customs authorities. Only the final decision that those authorities adopt is in the nature of a definitive decision producing binding legal effects. 65 The argument put forward by the applicants relating to the relevance of the interpretation of [OSCURATO:PERSONA] 259(5) of the implementing regulation, contained in the administrative practice regarding the application of [OSCURATO:PERSONA] 211(6) of the [OSCURATO:PERSONA] and [OSCURATO:PERSONA] 259 of the implementing regulation, adopted on 4 August 2016, following the first meeting of the [OSCURATO:PERSONA] ‘[OSCURATO:PERSONA] other than transit’ of 28 June 2016 and applicable from 1 September 2016 (‘the new administrative practice’), according to which the [OSCURATO:PERSONA]’s conclusion on the economic conditions is binding on the competent customs authorities, cannot call into question the conclusion drawn in paragraph 64 above. 66 In that respect, as the [OSCURATO:PERSONA] states, it should be noted that the new administrative practice merely replaces the administrative practice regarding the application of Articles 503 and 504 and [OSCURATO:PERSONA] 552(2) of [OSCURATO:PERSONA] 2454/93, adopted at the 107th meeting of the [OSCURATO:PERSONA] ‘[OSCURATO:PERSONA] with [OSCURATO:PERSONA]’ of 4 October 2005, as last adapted on 10 June 2013, according to which the conclusion on the economic conditions made by that committee was binding on the competent customs authorities. In so far as the interpretation in the latter administrative practice has not drawn the consequences of the judgment of 11 May 2006, [OSCURATO:PERSONA] (C‑11/05, EU:C:2006:312), and conflicts with its scope, it could not serve as a valid basis for the interpretation contained in the new administrative practice. 67 Furthermore, as regards the value of the interpretations made by the committee of the former [OSCURATO:PERSONA], it should be noted that, although they constitute important means of ensuring the uniform application of the provisions on economic conditions by the customs authorities of the [OSCURATO:PERSONA] and, as such, may be regarded as a valid aid to interpret the nature of the conclusions made on those economic conditions, they do not have legally binding force, with the result that it is necessary to consider whether their content is in accordance with the actual provisions of the implementing regulation and do not alter its scope (see, to that effect and by analogy, judgment of 15 February 1977, Dittmeyer , 69/76 and 70/76, EU:C:1977:25, paragraph 4). 68 As set out in paragraph 63 above, in so far as the implementing regulation reproduces verbatim, in the wording of [OSCURATO:PERSONA] 259(5), the expression ‘shall be taken into account by the customs authorities’ contained in [OSCURATO:PERSONA] 504(4) of the former implementing regulation, and does not provide that the national customs authorities are bound by those conclusions, it must be held that the interpretation contained in the new administrative practice is not in accordance with the actual provisions of the implementing regulation, as interpreted by the [OSCURATO:PERSONA] in the judgment of 11 May 2006, [OSCURATO:PERSONA] (C‑11/05, EU:C:2006:312). 69 In the light of the foregoing, without it being necessary to analyse the applicants’ other arguments, it must be held that the contested conclusion does not have the character of a final or binding decision and constitutes a simple informative written expression of opinion relating to the economic conditions, provided to the [OSCURATO:PERSONA] customs authority in the context of the authorisation procedure initiated by EMS. Accordingly, the validity of the contested conclusion, which came prior to the adoption of a final decision by the competent authority, can be examined only indirectly during judicial review of the final decision expressed in the authorisation given by the [OSCURATO:PERSONA] customs authorities, before the national court (see, to that effect and by analogy, judgment of 11 May 2006, [OSCURATO:PERSONA] (C‑11/05, EU:C:2006:312, paragraph 40). 70 It follows from all of the foregoing that, without it being necessary to examine the second objection to admissibility raised by the [OSCURATO:PERSONA], the plea of inadmissibility must be upheld in light of the absence of a challengeable act and the action must consequently be dismissed as being inadmissible. 71 [OSCURATO:PERSONA] those circumstances, in accordance with [OSCURATO:PERSONA] 142(2) of the Rules of Procedure, there is no longer any need to adjudicate on the application brought by EMS for leave to intervene in support of the form of order sought by the [OSCURATO:PERSONA]. Costs 72 [OSCURATO:PERSONA] 135(1) of the Rules of Procedure, if equity so requires, the [OSCURATO:PERSONA] may decide that an unsuccessful party is to pay only a proportion of the costs of the other party in addition to bearing his own costs, or even that he is not to be ordered to pay any costs. Furthermore, under [OSCURATO:PERSONA] 135(2) of the Rules of Procedure, the [OSCURATO:PERSONA] may order a party, even if successful, to pay some or all of the costs, if this appears justified by the conduct of that party, including before the proceedings were brought, especially if he has made the opposite party incur costs which the [OSCURATO:PERSONA] holds to be unreasonable or vexatious. 73 In the circumstances of the present case, the [OSCURATO:PERSONA] finds that, by facilitating the adoption of the administrative practices referred to in paragraphs 66 and 67 above, in the form of documents originating from the [OSCURATO:PERSONA], and in the absence of detailed information as to the legal scope of such practices, the [OSCURATO:PERSONA] may have given the applicants the impression that the contested decision was binding on the competent customs authorities, with the result that they believed that they were justified in contesting the validity of that conclusion before the [OSCURATO:PERSONA]. 74 Such circumstances constitute a ground justifying an order requiring the [OSCURATO:PERSONA] to pay the expenses incurred by the applicants for the purpose of the proceedings. 75 Consequently, the [OSCURATO:PERSONA] finds that a fair assessment of the circumstances of the case requires that the [OSCURATO:PERSONA] be ordered to pay, in addition to its own costs, the costs of the applicants. 76 Furthermore, under [OSCURATO:PERSONA] 144(10) of the Rules of Procedure, if, as here, the proceedings in the main case are concluded before the application to intervene has been decided, the applicant for leave to intervene and the main parties must each bear their own costs relating to the application to intervene. Given that, first, the application to intervene was not notified to the applicants and to the [OSCURATO:PERSONA] and, therefore, they were not placed in a position to incur costs, and, second, only EMS could claim certain costs in connection with the application to intervene, EMS must be ordered to bear any such costs. On those grounds, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: The action is dismissed. There is no longer any need to adjudicate on Euro-[OSCURATO:PERSONA] BV’s application to intervene. In addition to bearing its own costs, the [OSCURATO:PERSONA] shall pay the costs incurred by thyssenkrupp [OSCURATO:PERSONA] GmbH and thyssenkrupp [OSCURATO:PERSONA]. Euro-[OSCURATO:PERSONA] BV shall bear its own costs relating to the application to intervene. Luxembourg, 2 July 2018. E. Coulon G. [OSCURATO:PERSONA] * Language of the case: English.