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Corte di giustizia UEsentenza

Corte di giustizia UE n. 2700/2016

ECLI:EU:C:2016:301
Testo integrale del provvedimento

Testo integrale del provvedimento

[OSCURATO:PERSONA] ([OSCURATO:PERSONA])

21 [OSCURATO:PERSONA] 2016 (

* ) (Appeal — Rules of Procedure of the [OSCURATO:PERSONA] — [OSCURATO:PERSONA] 181 — [OSCURATO:PERSONA] 263 TFEU — Situation of a person not directly affected by the decision under appeal — [OSCURATO:PERSONA] union — Subsequent entry in the accounts and remission of import duties — Reception apparatus for colour television sets from Turkey) [OSCURATO:PERSONA] C‑264/15 P and C‑265/15 P, Two APPEALS under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 2 June 2015, Makro autoservicio mayorista SA, established in Madrid (Spain) (C‑264/15 P),

[OSCURATO:PERSONA] SL,

established in Madrid (C‑265/15 P), represented by P. [OSCURATO:PERSONA], avocat, and P. Muñiz, advogado, appellants, the other parties to the proceedings being:

[OSCURATO:PERSONA],

represented by R. Lyal and A. Caeiros, acting as Agents, defendant at first instance, [OSCURATO:PERSONA] of Spain, represented by A. [OSCURATO:PERSONA], acting as Agent, intervener at first instance,

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]),

composed of C. Lycourgos, President of the [OSCURATO:PERSONA], E. Juhász and C. Vajda (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: N. Wahl, Registrar: A. [OSCURATO:PERSONA], having regard to the decision taken, after hearing the [OSCURATO:PERSONA], to give a decision on the action by reasoned order, pursuant to [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA], makes the following

[OSCURATO:PERSONA]

1 By their appeals, Makro autoservicio mayorista SA and [OSCURATO:PERSONA] SL ask the [OSCURATO:PERSONA] to set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 12 March 2015 in [OSCURATO:PERSONA] and Makro autoservicio mayorista v

[OSCURATO:PERSONA]

(T‑249/12 and T‑269/12, EU:T:2015:150, ‘the judgment under appeal’), whereby the [OSCURATO:PERSONA] dismissed as inadmissible their actions for annulment of [OSCURATO:PERSONA] C(2010) 22 final of 18 January 2010 (Case REM 02/08) (‘the decision at issue’) finding that post-clearance entry in the accounts of import duties is justified and that remission of those duties is not justified in a particular case.

Legal context

[OSCURATO:PERSONA]

2 [OSCURATO:PERSONA] 220(2) of [OSCURATO:PERSONA] (EEC) No 2913/92 of 12 October 1992 establishing the [OSCURATO:PERSONA] (OJ 1992 L 302, p. 1), as amended by [OSCURATO:PERSONA] (EC) No 2700/2000 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 16 November 2000 (OJ 1999 L 311, p. 17; ‘the [OSCURATO:PERSONA]’), states: ‘…, subsequent entry in the accounts shall not occur where: … (b) the amount of duty legally owed failed to be entered in the accounts as a result of an error on the part of the customs authorities which could not reasonably have been detected by the person liable for payment, the latter for his part having acted in good faith and complied with all the provisions laid down by the legislation in force as regards the customs declaration; …’ 3 [OSCURATO:PERSONA] 239 of the [OSCURATO:PERSONA] provides: ‘1.

Import duties … may be repaid or remitted in situations …: – to be determined in accordance with the procedure of the committee; – resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned.

The situations in which this provision may be applied and the procedures to be followed to that end shall be defined in accordance with the Committee procedure.

Repayment or remission may be made subject to special conditions.

2. Duties shall be repaid or remitted for the reasons set out in paragraph 1 upon submission of an application to the appropriate customs office within 12 months from the date on which the amount of the duties was communicated to the debtor. …’

[OSCURATO:PERSONA]

4 The provisions governing the application of the [OSCURATO:PERSONA] were themselves codified in [OSCURATO:PERSONA] (EEC) No 2454/93 of 2 July 1993 (OJ 1993 L 253, p. 1), as amended by [OSCURATO:PERSONA] (EC) No 1335/2003 of 25 July 2003 (OJ 2003 L 187, p. 16; ‘the [OSCURATO:PERSONA]’).

The provisions governing the application of [OSCURATO:PERSONA] 220(2)(b) of the [OSCURATO:PERSONA] 5 Title III, Part IV, relating to customs debt, of the [OSCURATO:PERSONA] is entitled ‘Recovery of the amount of the customs debt’ and contains a number of articles relating to the application of [OSCURATO:PERSONA] 220(2)(b) of the [OSCURATO:PERSONA]. 6 [OSCURATO:PERSONA], [OSCURATO:PERSONA] 869 of the [OSCURATO:PERSONA] is worded as follows: ‘The customs authorities shall themselves decide not to enter uncollected duties in the accounts: … (b) in cases in which they consider that the conditions laid down in [OSCURATO:PERSONA] 220(2)(b) of the [[OSCURATO:PERSONA]] [OSCURATO:PERSONA] are fulfilled, except those in which the dossier must be transmitted to the [OSCURATO:PERSONA] pursuant to [OSCURATO:PERSONA]

871. However, where [OSCURATO:PERSONA] 871(2), second indent, is applicable, the customs authorities may not adopt a decision waiving entry in the accounts of the duties in question until the end of a procedure initiated in accordance with Articles 871 to

876. …’ 7 [OSCURATO:PERSONA] 871 of the [OSCURATO:PERSONA] sets out the cases in which the national authorities, when reaching a decision on an application for remission or repayment under [OSCURATO:PERSONA] 220(2)(b) and [OSCURATO:PERSONA] 236 of the [OSCURATO:PERSONA], are required to refer the matter to the [OSCURATO:PERSONA].

That article provides: ‘1.

The customs authority shall transmit the case to the [OSCURATO:PERSONA] to be settled under the procedure laid down in Articles 872 to 876 where it considers that the conditions laid down in [OSCURATO:PERSONA] 220(2)(b) of the [[OSCURATO:PERSONA]] [OSCURATO:PERSONA] are fulfilled and: – it considers that the [OSCURATO:PERSONA] has committed an error within the meaning of [OSCURATO:PERSONA] 220(2)(b) of the [[OSCURATO:PERSONA]] [OSCURATO:PERSONA], – the circumstances of the case are related to the findings of a [OSCURATO:PERSONA] investigation carried out under [OSCURATO:PERSONA] (EC) No 515/97 of 13 March 1997 on mutual assistance between the administrative authorities of the [OSCURATO:PERSONA] and cooperation between the latter and the [OSCURATO:PERSONA] to ensure the correct application of the law on customs and agricultural matters or under any other [OSCURATO:PERSONA] legislation or any agreement concluded by the [OSCURATO:PERSONA] with a country or group of countries in which provision is made for carrying out such [OSCURATO:PERSONA] investigations, or – the amount not collected from the operator concerned in respect of one or more import … operations but in consequence of a single error is EUR 500 000 or more.

2. However, the cases referred to in paragraph 1 shall not be transmitted where: – the [OSCURATO:PERSONA] has already adopted a decision under the procedure provided for in Articles 872 to 876 on a case involving comparable issues of fact and of law, – the [OSCURATO:PERSONA] is already considering a case involving comparable issues of fact and of law. …

6. [OSCURATO:PERSONA] one of the following situations occurs the [OSCURATO:PERSONA] shall return the dossier to the customs authority and the procedure referred to in Articles 872 to 876 shall be deemed never to have been initiated: … – under paragraphs 1 and 2, the dossier should not be transmitted; …’ 8 The second paragraph of [OSCURATO:PERSONA] 874 of the [OSCURATO:PERSONA] provides that: ‘[OSCURATO:PERSONA] shall notify the [OSCURATO:PERSONA] of the decisions it has adopted in order to help customs authorities to reach decisions in situations involving comparable issues of fact and law.’ The provisions governing the application of [OSCURATO:PERSONA] 239 of the [OSCURATO:PERSONA] 9 Chapter 3 of Title IV, on the repayment or remission of import or export duties, of Part IV of the [OSCURATO:PERSONA] is entitled ‘Specific provisions relating to the application of [OSCURATO:PERSONA] 239 of the [OSCURATO:PERSONA]’.

It includes a Section 1, on the decisions to be taken by the customs authorities of the [OSCURATO:PERSONA], and a Section 2, on the decisions to be taken by the

[OSCURATO:PERSONA].

– The decisions to be taken by the authorities of the [OSCURATO:PERSONA], referred to in Articles 899 to 904a of the [OSCURATO:PERSONA] 10 [OSCURATO:PERSONA] 899(2) of the [OSCURATO:PERSONA] is worded as follows: ‘In [cases other than those referred to in Articles 900 to 904], except those in which the dossier must be submitted to the [OSCURATO:PERSONA] pursuant to [OSCURATO:PERSONA] 905, the decision-making customs authority shall itself decide to grant repayment or remission of the import … duties where there is a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned. [OSCURATO:PERSONA] 905(2), second indent, is applicable, the customs authorities may not decide to authorise repayment or remission of the duties in question until the end of a procedure initiated in accordance with Articles 906 to 909.’ – The decisions to be taken by the [OSCURATO:PERSONA], referred to in Articles 905 to 909 of the [OSCURATO:PERSONA] 11 [OSCURATO:PERSONA] 905 of the [OSCURATO:PERSONA] provides: ‘1. [OSCURATO:PERSONA] the application for repayment or remission submitted under [OSCURATO:PERSONA] 239(2) of the [[OSCURATO:PERSONA]] [OSCURATO:PERSONA] is supported by evidence which might constitute a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned, the [OSCURATO:PERSONA] to which the decision-making customs authority belongs shall transmit the case to the [OSCURATO:PERSONA] to be settled under the procedure laid down in Articles 906 to 909 where: – the authority considers that a special situation is the result of the [OSCURATO:PERSONA] failing in its obligations, – the circumstances of the case are related to the findings of a [OSCURATO:PERSONA] investigation carried out under [OSCURATO:PERSONA] (EC) No 515/97, or under any other [OSCURATO:PERSONA] legislation or any agreement concluded by the [OSCURATO:PERSONA] with countries or groups of countries in which provision is made for carrying out such [OSCURATO:PERSONA] investigations, or – the amount for which the person concerned may be liable in respect of one or more import … operations but in consequence of a single special situation is EUR 500 000 or more.

The term “the person concerned” shall be interpreted in the same way as in [OSCURATO:PERSONA] 899.

2. However, the cases referred to in paragraph 1 shall not be transmitted where: – the [OSCURATO:PERSONA] has already adopted a decision under the procedure provided for in Articles 906 to 909 on a case involving comparable issues of fact and of law, – the [OSCURATO:PERSONA] is already considering a case involving comparable issues of fact and of law.

3. The case sent to the [OSCURATO:PERSONA] shall include all the facts necessary for a full examination of the case presented.

It shall include detailed information on the behaviour of the operator concerned, and in particular on his professional experience, good faith and diligence.

This assessment shall be accompanied by all information that may demonstrate that the operator acted in good faith.

The dossier shall also include a statement, signed by the applicant for repayment or remission, certifying that he has read the dossier and either stating that he has nothing to add or listing all the additional information that he considers should be included. …

6. [OSCURATO:PERSONA] one of the following situations occurs the [OSCURATO:PERSONA] shall return the dossier to the customs authority and the procedure referred to in Articles 906 to 909 shall be deemed never to have been initiated: … – under paragraphs 1 and 2, the dossier should not be transmitted; …’ 12 [OSCURATO:PERSONA] 908(1) of the [OSCURATO:PERSONA] provides: ‘[OSCURATO:PERSONA] concerned shall be notified of the decision referred to in [OSCURATO:PERSONA] 907 as soon as possible and in any event within one month of the expiry of the period specified in that [OSCURATO:PERSONA]. [OSCURATO:PERSONA] shall notify the [OSCURATO:PERSONA] of the decisions it has adopted in order to help customs authorities to reach decisions on cases involving comparable issues of fact and law.’ Background to the disputes 13 For the purpose of the present appeals, the background to the disputes, as derived from paragraphs 13 to 36 of the judgment under appeal, can be summarised as follows.

The appellants 14 The applicant in Case T‑249/12, [OSCURATO:PERSONA] SL, is a Spanish company, whose main activity is importing, distributing, manufacturing and providing after-sales services for electronic devices intended for the general public, including white and brown goods. 15 The applicant in Case T‑269/12, Makro autoservicio mayorista SA, is also a Spanish company, whose main activity is importing and distributing food and non-food products, such as electronic devices.

The assessment procedures initiated by the Spanish customs authorities and applications for remission of import duties submitted by the appellants 16 [OSCURATO:PERSONA] 2002, the Spanish customs authorities undertook a post-clearance verification of the imports of colour television sets by the appellants. [OSCURATO:PERSONA] and May 2004, the Spanish authorities gave a preliminary assessment in which they took the view that the colour television sets imported by the appellants were of Chinese origin and proposed applying the anti-dumping duties provided for by [OSCURATO:PERSONA] (EC) No 2584/98 of 27 November 1998 amending [OSCURATO:PERSONA] (EC) No 710/95 imposing a definitive anti-dumping duty on imports of colour television receivers originating in Malaysia, the [OSCURATO:PERSONA] of China, the [OSCURATO:PERSONA] of Korea, Singapore and Thailand and collecting definitively the provisional duty imposed (OJ 1998 L 324, p. 1). 17 On 17 May and 23 June 2004, the Spanish customs authorities notified the appellants of a customs debt in respect of their imports of colour television sets from Turkey in 2000 and 2001. 18 By letters of 19 May 2005, the appellants each sent the Spanish customs authorities an application for remission of their customs debt pursuant to [OSCURATO:PERSONA] 239 of the [OSCURATO:PERSONA]. 19 In early 2007, the Spanish customs authorities informed the appellants that they were forwarding their applications for the remission of import duties to the [OSCURATO:PERSONA] pursuant to [OSCURATO:PERSONA] 905(3) of the [OSCURATO:PERSONA]. 20 By letters of 8 July 2008, the [OSCURATO:PERSONA] informed the appellants that their applications for the remission of import duties would be returned to the Spanish customs authorities on the basis of [OSCURATO:PERSONA] 905(2), second indent, and (6) of the [OSCURATO:PERSONA], on the ground that it was already examining the application submitted by [OSCURATO:PERSONA] de Informática SA (‘[OSCURATO:PERSONA]’), registered under the reference REM 02/08, whose case-file was comparable in terms of fact and of law.

It also informed the Spanish authorities that, under [OSCURATO:PERSONA] 899(2) of the [OSCURATO:PERSONA], they were required, before reaching a decision on the applications for the remission of import duties submitted by the appellants, to wait until the [OSCURATO:PERSONA] had adopted a decision in Case REM 02/08.

The decision at issue 21 On 18 January 2010, the [OSCURATO:PERSONA] adopted the decision at issue finding that post-clearance entry in the accounts of import duties is justified and that remission of those duties is not justified in a particular case. 22 In the decision at issue, first, the [OSCURATO:PERSONA] took the view that the customs authorities had not made any error within the meaning of [OSCURATO:PERSONA] 220(2)(b) of the [OSCURATO:PERSONA] and that [OSCURATO:PERSONA] had not proved that it acted diligently, as required by that provision.

Secondly, the [OSCURATO:PERSONA] considered that there was no special situation within the meaning of [OSCURATO:PERSONA] 239 of the [OSCURATO:PERSONA]. 23 By application lodged with the [OSCURATO:PERSONA] on 6 [OSCURATO:PERSONA] 2010 (Case T‑153/10), [OSCURATO:PERSONA] sought annulment of the decision at issue. 24 By order of 28 February 2012 in [OSCURATO:PERSONA] de Informática v

[OSCURATO:PERSONA]

(T‑153/10, EU:T:2012:94), the [OSCURATO:PERSONA] found that there was no longer any need to adjudicate on the action.

The decisions adopted by the Spanish customs authorities with regard to the appellants 25 [OSCURATO:PERSONA] 2012, the Spanish customs authorities notified the appellants of their decision rejecting the application for the remission of import duties submitted by each of them.

In order to reject that application, the Spanish authorities relied on the decision at issue.

The procedure before the [OSCURATO:PERSONA] and the judgment under appeal 26 By applications registered at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 5 and 18 June 2012, the appellants brought an action for annulment of the decision at issue. 27 By separate documents lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 4 and 26 September 2012, the [OSCURATO:PERSONA] raised a plea of inadmissibility pursuant to [OSCURATO:PERSONA] 114(1) of the Rules of Procedure of the [OSCURATO:PERSONA]. 28 [OSCURATO:PERSONA] of Spain was granted leave to intervene in support of the appellants. 29 By order of the President of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 8 October 2014, after hearing the parties, [OSCURATO:PERSONA] T‑249/12 and T‑269/12 were joined for the purposes of the oral procedure pursuant to [OSCURATO:PERSONA] 50 of the Rules of Procedure of the [OSCURATO:PERSONA]. 30 By the judgment under appeal, the [OSCURATO:PERSONA] held that the appellants are not directly affected by the decision at issue and, consequently, dismissed the actions as inadmissible.

Forms of order sought by the parties before the [OSCURATO:PERSONA] of Justice 31 By decision of the President of the [OSCURATO:PERSONA] of 29 July 2015, [OSCURATO:PERSONA] C‑264/15 P and C‑265/15 P were joined for the purposes of the written and oral part of the procedure and the judgment. 32 The appellants claim that the [OSCURATO:PERSONA] should: – set aside the judgment under appeal; – declare the actions admissible; – return the cases to the [OSCURATO:PERSONA] for a ruling on the substance of the actions; and – order the [OSCURATO:PERSONA] to pay the costs. 33 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: – dismiss the appeals; and – order the appellants to pay the costs.

The appeals 34 [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], decide by reasoned order to dismiss the appeal in whole or in part without opening the oral procedure. 35 That provision should be applied in the present cases.

The first ground of appeal Arguments of the parties 36 By their first ground of appeal, the appellants submit that the [OSCURATO:PERSONA] erred in law when it held that the Spanish authorities had a margin of discretion in the implementation of the decision at issue with regard to them.

This ground of appeal is divided into two branches. 37 By the first branch of the first ground of appeal, the appellants complain that the [OSCURATO:PERSONA] did not correctly interpret, in paragraph 77 of the judgment under appeal, paragraphs 64 and 65 of the judgment in Heuschen & [OSCURATO:PERSONA]

(C‑375/07, EU:C:2008:645).

38 By the second branch of the first ground of appeal, the appellants submit that the [OSCURATO:PERSONA] interpretation and application of the provisions of the [OSCURATO:PERSONA] were incorrect.

The appellants state that, according to those provisions, the national authorities are lacking any discretion in the implementation of the decision at issue with regard to them. 39 According to the appellants, Articles 869(b), 871(2), the second paragraph of [OSCURATO:PERSONA] 874, Articles 899(2), 905(2) and 908(1) of the [OSCURATO:PERSONA] codify the principle of the primacy of EU law.

Those articles ensure that the [OSCURATO:PERSONA]’s assessment of EU law and of the facts in the decision at issue is applied in a uniform manner in all of the [OSCURATO:PERSONA] to all other economic operators who are in a comparable factual and legal situation.

Consequently, neither the national authorities nor the national courts can adopt measures which are incompatible with the decision at issue. 40 The appellants submit that that finding is confirmed by paragraphs 61 and 62 of the judgment in Heuschen & [OSCURATO:PERSONA]

(C‑375/07, EU:C:2008:645).

41 In addition, the appellants contend that, in accordance with [OSCURATO:PERSONA] 871(1) of the [OSCURATO:PERSONA], their dossier falls within the exclusive competence of the [OSCURATO:PERSONA].

That exclusive competence would be ended if the national authorities were able to adopt a decision different from that which the [OSCURATO:PERSONA] has already taken. 42 [OSCURATO:PERSONA] of Spain contends that, pursuant to [OSCURATO:PERSONA] 905(1) and (2) of the [OSCURATO:PERSONA], in the case of a remission of import duties, the national authorities do not have any margin of discretion enabling them to depart from the [OSCURATO:PERSONA]’s position.

The only ‘margin’ available to those authorities is the power to choose to send a new dossier to the [OSCURATO:PERSONA] for decision. 43 In addition, the [OSCURATO:PERSONA] of Spain submits that [OSCURATO:PERSONA] 908 of the [OSCURATO:PERSONA] expressly provides that decisions granting the repayment or remission of import duties are to have effect in cases involving comparable issues of fact and of law. 44 [OSCURATO:PERSONA] disputes the appellants’ arguments.

Findings of the [OSCURATO:PERSONA] 45 It should be recalled at the outset that the condition that a natural or legal person must be directly concerned by the decision being challenged, as provided for in the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU, requires two conditions to be satisfied, namely (i) the contested measure must directly affect the legal situation of the individual and (ii) it must leave no discretion to its addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules alone without the application of other intermediate rules (see, to that effect, order in [OSCURATO:PERSONA] of Agriculture and [OSCURATO:PERSONA] v

[OSCURATO:PERSONA]

, C‑248/12 P, EU:C:2014:137, paragraph 21 and the case-law cited). 46 Concerning the second branch of the first ground of appeal, it should be borne in mind that, in accordance with the case-law cited in the preceding paragraph, the appellants can be considered to be directly affected by the decision at issue only if that decision, even on the assumption that it directly affects their legal situation, leaves no discretion to the Spanish authorities for the purpose of its implementation in their regard. 47 Contrary to the appellants’ submission, Articles 869(b), 871(2), the second paragraph of [OSCURATO:PERSONA] 874, Articles 899(2), 905(2) and 908(1) of the [OSCURATO:PERSONA] do not preclude any measure of discretion enjoyed by the Spanish authorities.

As is apparent from paragraphs 78, 79 and 81 of the judgment under appeal, the only obligation incumbent on those authorities, pursuant to those provisions, was to await the outcome of the proceedings concerning the application for remission submitted by [OSCURATO:PERSONA], so as to be able to take into account the decision adopted by the [OSCURATO:PERSONA] when they decided on the applications submitted by the appellants. 48 However, that obligation does not preclude an assessment by the Spanish authorities.

It was for them to judge the degree of similarity between the application submitted by [OSCURATO:PERSONA] and the applications submitted by the appellants.

In that context, the Spanish authorities had, in particular, to take into account any particularity, of fact or of law, that characterises the specific situation of the appellants, as the [OSCURATO:PERSONA] noted in paragraph 80 of the judgment under appeal.

As the [OSCURATO:PERSONA] maintains in its observations, those authorities could, in such a case, arrive at the conclusion that the specific situation of the appellants was sufficiently dissimilar from that of [OSCURATO:PERSONA] to justify a different outcome.

In that regard, it is important to note that the fact that the [OSCURATO:PERSONA] sent the appellants’ dossier back to the Spanish authorities, on the ground that it had already examined the application submitted by [OSCURATO:PERSONA] whose dossier was comparable in terms of fact and of law, does not mean that their situation is so similar to that of [OSCURATO:PERSONA] that the result at the end of the assessment of their applications must necessarily be the same. 49 The finding that the national authorities exercise discretion in a case such as that in the present case is confirmed by the second paragraph of [OSCURATO:PERSONA] 874 and [OSCURATO:PERSONA] 908(1) of the [OSCURATO:PERSONA] which oblige the [OSCURATO:PERSONA] to notify the [OSCURATO:PERSONA] of the decisions it has adopted ‘in order to help customs authorities to reach decisions’ in such cases. 50 In addition, contrary to what the appellants assert, it is not apparent from paragraphs 61 and 62 of the judgment in Heuschen & [OSCURATO:PERSONA] (C‑375/07, EU:C:2008:645) that the [OSCURATO:PERSONA] interpreted the provisions of the [OSCURATO:PERSONA] in such a way as to deprive the authorities or the national courts of any measure of discretion in a case such as that in the present case. 51 It follows from the foregoing that the second part of the first ground of appeal must be dismissed as being manifestly unfounded. 52 Concerning the first part of the first ground of appeal, it must be pointed out that, in accordance with settled case-law, where one of the grounds adopted by the [OSCURATO:PERSONA] is sufficient to sustain the operative part of its judgment, any defects that might vitiate other grounds given in the judgment concerned in any event have no bearing on that operative part and, accordingly, a plea relying on such defects is ineffective and must be dismissed (see, inter alia, judgments in

[OSCURATO:PERSONA]

v CAS Succhi di Frutta , C‑496/99 P, EU:C:2004:236, paragraph 68, and

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

, C‑416/11 P, EU:C:2012:761, paragraph 45). 53 It follows from paragraphs 46 to 51 of the present order that the [OSCURATO:PERSONA] was right to find, in the judgment under appeal, that the decision at issue did not directly affect the appellants’ legal situation, and that finding has not been properly called into question by the appellants. 54 Accordingly, any error of law made by the [OSCURATO:PERSONA] in the interpretation of paragraphs 64 and 65 of the judgment in Heuschen & [OSCURATO:PERSONA] (C‑375/07, EU:C:2008:645) would, in any event, have had no effect on the outcome of the actions at first instance and thus would have had no bearing on the operative part of the judgment under appeal. 55 Consequently, the first part of the first ground of appeal must be rejected and, accordingly, that ground of appeal must be rejected in its entirety as manifestly unfounded.

The second ground of appeal Arguments of the parties 56 By their second ground of appeal, the appellants argue that, even if the Spanish authorities had discretion in the implementation of the decision at issue, the [OSCURATO:PERSONA] erred in law because the mere existence of discretion is insufficient to prevent that decision from being of direct concern to the appellants.

That ground of appeal is divided into two parts. 57 By the first part of the second ground of appeal, the appellants claim that it is apparent from the judgment in

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

(T‑366/03 and T‑235/04, EU:T:2005:347, paragraph 29) that, if the addressee of a [OSCURATO:PERSONA] decision does not exercise any discretion when it implements and notifies that decision to a third party, that party is directly concerned by that decision.

According to the appellants, the [OSCURATO:PERSONA] erred in law because it failed to consider that legal principle or erred in its application. 58 By the second part of the second ground of appeal, the appellants assert that, even if the Spanish authorities had discretion, such discretion was purely theoretical.

According to the appellants, it is clear from the case-law of the [OSCURATO:PERSONA] that, when the possibility for addresses not to give effect to the measure of EU law is purely theoretical, such measure is of direct concern to that third party (judgments in Piraiki-Patraiki and Others v

[OSCURATO:PERSONA]

, 11/82, EU:C:1985:18, paragraphs 8 to 10, and Dreyfus v

[OSCURATO:PERSONA]

, C‑386/96 P, EU:C:1998:193, paragraph 44).

The appellants submit that the [OSCURATO:PERSONA] erred in law because it failed to consider that legal principle or erred in its application. 59 According to the [OSCURATO:PERSONA] of Spain, it is apparent from [OSCURATO:PERSONA] 905(2) and (6) of the [OSCURATO:PERSONA] that the Spanish authorities do not have any margin of discretion enabling them to move away from the [OSCURATO:PERSONA]’s position.

The only margin available to those authorities is the power to choose to send a new dossier to the [OSCURATO:PERSONA] for decision. 60 [OSCURATO:PERSONA] of Spain recalls in this context that the [OSCURATO:PERSONA] services expressly stated, after a concrete and individual examination, that the situation of the appellants and that of [OSCURATO:PERSONA] had characteristics which presented comparable issues of fact and of law. 61 [OSCURATO:PERSONA] disputes the appellants’ arguments.

Findings of the [OSCURATO:PERSONA] 62 So far as concerns the first part of the second ground of appeal, it should be borne in mind that it is apparent from the case-law cited in paragraph 45 of the present order that the condition that a natural or legal person must be directly concerned by the decision being challenged, as provided for in the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU, requires two conditions to be satisfied.

The second of those conditions requires that the contested measure does not leave any discretion to its addressees who are entrusted with the task of implementing it.

Contrary to the appellants’ submission, the failure to exercise discretion is not therefore a relevant criterion for determining whether a natural or legal person is directly concerned by such a measure, as provided for in the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU. 63 In addition, as the [OSCURATO:PERSONA] notes in its observations, the judgment in

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

(T‑366/03 and T‑235/04, EU:T:2005:347) concerned a situation in which the addressee of the decision, the [OSCURATO:PERSONA] of Austria, did not have any discretion, since its role was limited to communicating the [OSCURATO:PERSONA]’s decision to the region concerned.

That is how the words ‘did not exercise any discretion’, found in paragraph 29 of that judgment, must be construed.

That judgment is not therefore capable of supporting the appellants’ assertions. 64 It follows from the foregoing that the first part of the second ground of appeal must be dismissed as being manifestly unfounded. 65 So far as concerns the second part of the second ground of appeal, it should be borne in mind that the [OSCURATO:PERSONA] has consistently held that a submission made for the first time in an appeal before the [OSCURATO:PERSONA] must be rejected as inadmissible.

In an appeal, the [OSCURATO:PERSONA] jurisdiction is confined to a review of the assessment by the [OSCURATO:PERSONA] of the pleas argued before it.

To allow a party to put forward, in an appeal, a plea which it has not raised before the [OSCURATO:PERSONA] would mean allowing that party to bring before the [OSCURATO:PERSONA] of Justice, whose jurisdiction in appeals is limited, a case of wider scope than the one heard by the [OSCURATO:PERSONA]. 66 It must be stated, however, that the appellants did not claim before the [OSCURATO:PERSONA] that, even if the Spanish authorities had discretion, such discretion was purely theoretical.

Consequently, the second part of the second ground of appeal must be rejected as manifestly inadmissible. 67 The second ground of appeal must therefore be rejected in its entirety as being, in part, manifestly unfounded and, in part, manifestly inadmissible.

The third ground of appeal Arguments of the parties 68 According to the appellants, the [OSCURATO:PERSONA] erred, in paragraph 86 of the judgment under appeal, in the legal characterisation of the evidence, or distorted the evidence.

The appellants consider that the [OSCURATO:PERSONA] incorrectly described the decision of the Spanish authorities rejecting their application for the remission of import duties.

According to them, the Spanish authorities did not ‘take care’ in establishing that the conclusions contained in the contested decision applied equally to the appellants.

In actual fact, their decision represents only a ‘notification’ or a ‘mere reproduction’ of the decision at issue. 69 [OSCURATO:PERSONA] of Spain states that it has nothing to add to what is set out in the appellants’ appeals. 70 [OSCURATO:PERSONA] disputes the appellants’ arguments.

Findings of the [OSCURATO:PERSONA] 71 The arguments put forward by the appellants in support of the third ground of appeal cannot succeed. 72 That ground of appeal is ineffective.

Even if it were correct to consider, like the appellants, that the [OSCURATO:PERSONA] erred, in paragraph 86 of the judgment under appeal, in its description of the actions of the Spanish authorities, that would not mean that those authorities did not have a discretion, which constitutes the relevant criterion.

As is apparent from paragraphs 48 and 49 of the present order, the Spanish authorities had a discretion. 73 The third ground of appeal must therefore be dismissed. 74 In the light of all the foregoing observations, the appeal must be dismissed in its entirety.

Costs 75 [OSCURATO:PERSONA] 138(1) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, which applies to appeal proceedings by virtue of [OSCURATO:PERSONA] 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings.

Since the appellants have been unsuccessful, they must be ordered to pay the costs, as applied for by the [OSCURATO:PERSONA]. 76 In accordance with [OSCURATO:PERSONA] 140(1) of the Rules of Procedure, which also applies to appeal proceedings by virtue of [OSCURATO:PERSONA] 184(1) of those rules, the [OSCURATO:PERSONA] which have intervened in the proceedings are to bear their own costs. [OSCURATO:PERSONA] of Spain must be ordered to bear its own costs.

On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders:

1. The appeal is dismissed.

2. Makro autoservicio mayorista SA and [OSCURATO:PERSONA] SL shall pay the costs.

3. [OSCURATO:PERSONA] of Spain shall bear its own costs. [Signatures] * Language of the case: English.

Anonimizzato ex art. 52 D.Lgs. 196/2003
[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 21 [OSCURATO:PERSONA] 2016 ( * ) (Appeal — Rules of Procedure of the [OSCURATO:PERSONA] — [OSCURATO:PERSONA] 181 — [OSCURATO:PERSONA] 263 TFEU — Situation of a person not directly affected by the decision under appeal — [OSCURATO:PERSONA] union — Subsequent entry in the accounts and remission of import duties — Reception apparatus for colour television sets from Turkey) [OSCURATO:PERSONA] C‑264/15 P and C‑265/15 P, Two APPEALS under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 2 June 2015, Makro autoservicio mayorista SA, established in Madrid (Spain) (C‑264/15 P), [OSCURATO:PERSONA] SL, established in Madrid (C‑265/15 P), represented by P. [OSCURATO:PERSONA], avocat, and P. Muñiz, advogado, appellants, the other parties to the proceedings being: [OSCURATO:PERSONA], represented by R. Lyal and A. Caeiros, acting as Agents, defendant at first instance, [OSCURATO:PERSONA] of Spain, represented by A. [OSCURATO:PERSONA], acting as Agent, intervener at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of C. Lycourgos, President of the [OSCURATO:PERSONA], E. Juhász and C. Vajda (Rapporteur), [OSCURATO:PERSONA], [OSCURATO:PERSONA]: N. Wahl, Registrar: A. [OSCURATO:PERSONA], having regard to the decision taken, after hearing the [OSCURATO:PERSONA], to give a decision on the action by reasoned order, pursuant to [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA], makes the following [OSCURATO:PERSONA] 1 By their appeals, Makro autoservicio mayorista SA and [OSCURATO:PERSONA] SL ask the [OSCURATO:PERSONA] to set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 12 March 2015 in [OSCURATO:PERSONA] and Makro autoservicio mayorista v [OSCURATO:PERSONA] (T‑249/12 and T‑269/12, EU:T:2015:150, ‘the judgment under appeal’), whereby the [OSCURATO:PERSONA] dismissed as inadmissible their actions for annulment of [OSCURATO:PERSONA] C(2010) 22 final of 18 January 2010 (Case REM 02/08) (‘the decision at issue’) finding that post-clearance entry in the accounts of import duties is justified and that remission of those duties is not justified in a particular case. Legal context [OSCURATO:PERSONA] 2 [OSCURATO:PERSONA] 220(2) of [OSCURATO:PERSONA] (EEC) No 2913/92 of 12 October 1992 establishing the [OSCURATO:PERSONA] (OJ 1992 L 302, p. 1), as amended by [OSCURATO:PERSONA] (EC) No 2700/2000 of the [OSCURATO:PERSONA] and of the [OSCURATO:PERSONA] of 16 November 2000 (OJ 1999 L 311, p. 17; ‘the [OSCURATO:PERSONA]’), states: ‘…, subsequent entry in the accounts shall not occur where: … (b)      the amount of duty legally owed failed to be entered in the accounts as a result of an error on the part of the customs authorities which could not reasonably have been detected by the person liable for payment, the latter for his part having acted in good faith and complied with all the provisions laid down by the legislation in force as regards the customs declaration; …’ 3 [OSCURATO:PERSONA] 239 of the [OSCURATO:PERSONA] provides: ‘1.      Import duties … may be repaid or remitted in situations …: –        to be determined in accordance with the procedure of the committee; –        resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned. The situations in which this provision may be applied and the procedures to be followed to that end shall be defined in accordance with the Committee procedure. Repayment or remission may be made subject to special conditions. 2.      Duties shall be repaid or remitted for the reasons set out in paragraph 1 upon submission of an application to the appropriate customs office within 12 months from the date on which the amount of the duties was communicated to the debtor. …’ [OSCURATO:PERSONA] 4 The provisions governing the application of the [OSCURATO:PERSONA] were themselves codified in [OSCURATO:PERSONA] (EEC) No 2454/93 of 2 July 1993 (OJ 1993 L 253, p. 1), as amended by [OSCURATO:PERSONA] (EC) No 1335/2003 of 25 July 2003 (OJ 2003 L 187, p. 16; ‘the [OSCURATO:PERSONA]’). The provisions governing the application of [OSCURATO:PERSONA] 220(2)(b) of the [OSCURATO:PERSONA] 5 Title III, Part IV, relating to customs debt, of the [OSCURATO:PERSONA] is entitled ‘Recovery of the amount of the customs debt’ and contains a number of articles relating to the application of [OSCURATO:PERSONA] 220(2)(b) of the [OSCURATO:PERSONA]. 6 [OSCURATO:PERSONA], [OSCURATO:PERSONA] 869 of the [OSCURATO:PERSONA] is worded as follows: ‘The customs authorities shall themselves decide not to enter uncollected duties in the accounts: … (b)      in cases in which they consider that the conditions laid down in [OSCURATO:PERSONA] 220(2)(b) of the [[OSCURATO:PERSONA]] [OSCURATO:PERSONA] are fulfilled, except those in which the dossier must be transmitted to the [OSCURATO:PERSONA] pursuant to [OSCURATO:PERSONA] 871. However, where [OSCURATO:PERSONA] 871(2), second indent, is applicable, the customs authorities may not adopt a decision waiving entry in the accounts of the duties in question until the end of a procedure initiated in accordance with Articles 871 to 876. …’ 7 [OSCURATO:PERSONA] 871 of the [OSCURATO:PERSONA] sets out the cases in which the national authorities, when reaching a decision on an application for remission or repayment under [OSCURATO:PERSONA] 220(2)(b) and [OSCURATO:PERSONA] 236 of the [OSCURATO:PERSONA], are required to refer the matter to the [OSCURATO:PERSONA]. That article provides: ‘1.      The customs authority shall transmit the case to the [OSCURATO:PERSONA] to be settled under the procedure laid down in Articles 872 to 876 where it considers that the conditions laid down in [OSCURATO:PERSONA] 220(2)(b) of the [[OSCURATO:PERSONA]] [OSCURATO:PERSONA] are fulfilled and: –        it considers that the [OSCURATO:PERSONA] has committed an error within the meaning of [OSCURATO:PERSONA] 220(2)(b) of the [[OSCURATO:PERSONA]] [OSCURATO:PERSONA], –        the circumstances of the case are related to the findings of a [OSCURATO:PERSONA] investigation carried out under [OSCURATO:PERSONA] (EC) No 515/97 of 13 March 1997 on mutual assistance between the administrative authorities of the [OSCURATO:PERSONA] and cooperation between the latter and the [OSCURATO:PERSONA] to ensure the correct application of the law on customs and agricultural matters or under any other [OSCURATO:PERSONA] legislation or any agreement concluded by the [OSCURATO:PERSONA] with a country or group of countries in which provision is made for carrying out such [OSCURATO:PERSONA] investigations, or –        the amount not collected from the operator concerned in respect of one or more import … operations but in consequence of a single error is EUR 500 000 or more. 2.      However, the cases referred to in paragraph 1 shall not be transmitted where: –        the [OSCURATO:PERSONA] has already adopted a decision under the procedure provided for in Articles 872 to 876 on a case involving comparable issues of fact and of law, –        the [OSCURATO:PERSONA] is already considering a case involving comparable issues of fact and of law. … 6.      [OSCURATO:PERSONA] one of the following situations occurs the [OSCURATO:PERSONA] shall return the dossier to the customs authority and the procedure referred to in Articles 872 to 876 shall be deemed never to have been initiated: … –        under paragraphs 1 and 2, the dossier should not be transmitted; …’ 8 The second paragraph of [OSCURATO:PERSONA] 874 of the [OSCURATO:PERSONA] provides that: ‘[OSCURATO:PERSONA] shall notify the [OSCURATO:PERSONA] of the decisions it has adopted in order to help customs authorities to reach decisions in situations involving comparable issues of fact and law.’ The provisions governing the application of [OSCURATO:PERSONA] 239 of the [OSCURATO:PERSONA] 9 Chapter 3 of Title IV, on the repayment or remission of import or export duties, of Part IV of the [OSCURATO:PERSONA] is entitled ‘Specific provisions relating to the application of [OSCURATO:PERSONA] 239 of the [OSCURATO:PERSONA]’. It includes a Section 1, on the decisions to be taken by the customs authorities of the [OSCURATO:PERSONA], and a Section 2, on the decisions to be taken by the [OSCURATO:PERSONA]. –       The decisions to be taken by the authorities of the [OSCURATO:PERSONA], referred to in Articles 899 to 904a of the [OSCURATO:PERSONA] 10 [OSCURATO:PERSONA] 899(2) of the [OSCURATO:PERSONA] is worded as follows: ‘In [cases other than those referred to in Articles 900 to 904], except those in which the dossier must be submitted to the [OSCURATO:PERSONA] pursuant to [OSCURATO:PERSONA] 905, the decision-making customs authority shall itself decide to grant repayment or remission of the import … duties where there is a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned. [OSCURATO:PERSONA] 905(2), second indent, is applicable, the customs authorities may not decide to authorise repayment or remission of the duties in question until the end of a procedure initiated in accordance with Articles 906 to 909.’ –       The decisions to be taken by the [OSCURATO:PERSONA], referred to in Articles 905 to 909 of the [OSCURATO:PERSONA] 11 [OSCURATO:PERSONA] 905 of the [OSCURATO:PERSONA] provides: ‘1.      [OSCURATO:PERSONA] the application for repayment or remission submitted under [OSCURATO:PERSONA] 239(2) of the [[OSCURATO:PERSONA]] [OSCURATO:PERSONA] is supported by evidence which might constitute a special situation resulting from circumstances in which no deception or obvious negligence may be attributed to the person concerned, the [OSCURATO:PERSONA] to which the decision-making customs authority belongs shall transmit the case to the [OSCURATO:PERSONA] to be settled under the procedure laid down in Articles 906 to 909 where: –        the authority considers that a special situation is the result of the [OSCURATO:PERSONA] failing in its obligations, –        the circumstances of the case are related to the findings of a [OSCURATO:PERSONA] investigation carried out under [OSCURATO:PERSONA] (EC) No 515/97, or under any other [OSCURATO:PERSONA] legislation or any agreement concluded by the [OSCURATO:PERSONA] with countries or groups of countries in which provision is made for carrying out such [OSCURATO:PERSONA] investigations, or –        the amount for which the person concerned may be liable in respect of one or more import … operations but in consequence of a single special situation is EUR 500 000 or more. The term “the person concerned” shall be interpreted in the same way as in [OSCURATO:PERSONA] 899. 2.      However, the cases referred to in paragraph 1 shall not be transmitted where: –        the [OSCURATO:PERSONA] has already adopted a decision under the procedure provided for in Articles 906 to 909 on a case involving comparable issues of fact and of law, –        the [OSCURATO:PERSONA] is already considering a case involving comparable issues of fact and of law. 3.      The case sent to the [OSCURATO:PERSONA] shall include all the facts necessary for a full examination of the case presented. It shall include detailed information on the behaviour of the operator concerned, and in particular on his professional experience, good faith and diligence. This assessment shall be accompanied by all information that may demonstrate that the operator acted in good faith. The dossier shall also include a statement, signed by the applicant for repayment or remission, certifying that he has read the dossier and either stating that he has nothing to add or listing all the additional information that he considers should be included. … 6.      [OSCURATO:PERSONA] one of the following situations occurs the [OSCURATO:PERSONA] shall return the dossier to the customs authority and the procedure referred to in Articles 906 to 909 shall be deemed never to have been initiated: … –        under paragraphs 1 and 2, the dossier should not be transmitted; …’ 12 [OSCURATO:PERSONA] 908(1) of the [OSCURATO:PERSONA] provides: ‘[OSCURATO:PERSONA] concerned shall be notified of the decision referred to in [OSCURATO:PERSONA] 907 as soon as possible and in any event within one month of the expiry of the period specified in that [OSCURATO:PERSONA]. [OSCURATO:PERSONA] shall notify the [OSCURATO:PERSONA] of the decisions it has adopted in order to help customs authorities to reach decisions on cases involving comparable issues of fact and law.’ Background to the disputes 13 For the purpose of the present appeals, the background to the disputes, as derived from paragraphs 13 to 36 of the judgment under appeal, can be summarised as follows. The appellants 14 The applicant in Case T‑249/12, [OSCURATO:PERSONA] SL, is a Spanish company, whose main activity is importing, distributing, manufacturing and providing after-sales services for electronic devices intended for the general public, including white and brown goods. 15 The applicant in Case T‑269/12, Makro autoservicio mayorista SA, is also a Spanish company, whose main activity is importing and distributing food and non-food products, such as electronic devices. The assessment procedures initiated by the Spanish customs authorities and applications for remission of import duties submitted by the appellants 16 [OSCURATO:PERSONA] 2002, the Spanish customs authorities undertook a post-clearance verification of the imports of colour television sets by the appellants. [OSCURATO:PERSONA] and May 2004, the Spanish authorities gave a preliminary assessment in which they took the view that the colour television sets imported by the appellants were of Chinese origin and proposed applying the anti-dumping duties provided for by [OSCURATO:PERSONA] (EC) No 2584/98 of 27 November 1998 amending [OSCURATO:PERSONA] (EC) No 710/95 imposing a definitive anti-dumping duty on imports of colour television receivers originating in Malaysia, the [OSCURATO:PERSONA] of China, the [OSCURATO:PERSONA] of Korea, Singapore and Thailand and collecting definitively the provisional duty imposed (OJ 1998 L 324, p. 1). 17 On 17 May and 23 June 2004, the Spanish customs authorities notified the appellants of a customs debt in respect of their imports of colour television sets from Turkey in 2000 and 2001. 18 By letters of 19 May 2005, the appellants each sent the Spanish customs authorities an application for remission of their customs debt pursuant to [OSCURATO:PERSONA] 239 of the [OSCURATO:PERSONA]. 19 In early 2007, the Spanish customs authorities informed the appellants that they were forwarding their applications for the remission of import duties to the [OSCURATO:PERSONA] pursuant to [OSCURATO:PERSONA] 905(3) of the [OSCURATO:PERSONA]. 20 By letters of 8 July 2008, the [OSCURATO:PERSONA] informed the appellants that their applications for the remission of import duties would be returned to the Spanish customs authorities on the basis of [OSCURATO:PERSONA] 905(2), second indent, and (6) of the [OSCURATO:PERSONA], on the ground that it was already examining the application submitted by [OSCURATO:PERSONA] de Informática SA (‘[OSCURATO:PERSONA]’), registered under the reference REM 02/08, whose case-file was comparable in terms of fact and of law. It also informed the Spanish authorities that, under [OSCURATO:PERSONA] 899(2) of the [OSCURATO:PERSONA], they were required, before reaching a decision on the applications for the remission of import duties submitted by the appellants, to wait until the [OSCURATO:PERSONA] had adopted a decision in Case REM 02/08. The decision at issue 21 On 18 January 2010, the [OSCURATO:PERSONA] adopted the decision at issue finding that post-clearance entry in the accounts of import duties is justified and that remission of those duties is not justified in a particular case. 22 In the decision at issue, first, the [OSCURATO:PERSONA] took the view that the customs authorities had not made any error within the meaning of [OSCURATO:PERSONA] 220(2)(b) of the [OSCURATO:PERSONA] and that [OSCURATO:PERSONA] had not proved that it acted diligently, as required by that provision. Secondly, the [OSCURATO:PERSONA] considered that there was no special situation within the meaning of [OSCURATO:PERSONA] 239 of the [OSCURATO:PERSONA]. 23 By application lodged with the [OSCURATO:PERSONA] on 6 [OSCURATO:PERSONA] 2010 (Case T‑153/10), [OSCURATO:PERSONA] sought annulment of the decision at issue. 24 By order of 28 February 2012 in [OSCURATO:PERSONA] de Informática v [OSCURATO:PERSONA] (T‑153/10, EU:T:2012:94), the [OSCURATO:PERSONA] found that there was no longer any need to adjudicate on the action. The decisions adopted by the Spanish customs authorities with regard to the appellants 25 [OSCURATO:PERSONA] 2012, the Spanish customs authorities notified the appellants of their decision rejecting the application for the remission of import duties submitted by each of them. In order to reject that application, the Spanish authorities relied on the decision at issue. The procedure before the [OSCURATO:PERSONA] and the judgment under appeal 26 By applications registered at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 5 and 18 June 2012, the appellants brought an action for annulment of the decision at issue. 27 By separate documents lodged at the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] on 4 and 26 September 2012, the [OSCURATO:PERSONA] raised a plea of inadmissibility pursuant to [OSCURATO:PERSONA] 114(1) of the Rules of Procedure of the [OSCURATO:PERSONA]. 28 [OSCURATO:PERSONA] of Spain was granted leave to intervene in support of the appellants. 29 By order of the President of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 8 October 2014, after hearing the parties, [OSCURATO:PERSONA] T‑249/12 and T‑269/12 were joined for the purposes of the oral procedure pursuant to [OSCURATO:PERSONA] 50 of the Rules of Procedure of the [OSCURATO:PERSONA]. 30 By the judgment under appeal, the [OSCURATO:PERSONA] held that the appellants are not directly affected by the decision at issue and, consequently, dismissed the actions as inadmissible. Forms of order sought by the parties before the [OSCURATO:PERSONA] of Justice 31 By decision of the President of the [OSCURATO:PERSONA] of 29 July 2015, [OSCURATO:PERSONA] C‑264/15 P and C‑265/15 P were joined for the purposes of the written and oral part of the procedure and the judgment. 32 The appellants claim that the [OSCURATO:PERSONA] should: –        set aside the judgment under appeal; –        declare the actions admissible; –        return the cases to the [OSCURATO:PERSONA] for a ruling on the substance of the actions; and –        order the [OSCURATO:PERSONA] to pay the costs. 33 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: –        dismiss the appeals; and –        order the appellants to pay the costs. The appeals 34 [OSCURATO:PERSONA] 181 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, where an appeal is, in whole or in part, manifestly inadmissible or manifestly unfounded, the [OSCURATO:PERSONA] may at any time, acting on a proposal from the Judge-Rapporteur and after hearing the [OSCURATO:PERSONA], decide by reasoned order to dismiss the appeal in whole or in part without opening the oral procedure. 35 That provision should be applied in the present cases. The first ground of appeal Arguments of the parties 36 By their first ground of appeal, the appellants submit that the [OSCURATO:PERSONA] erred in law when it held that the Spanish authorities had a margin of discretion in the implementation of the decision at issue with regard to them. This ground of appeal is divided into two branches. 37 By the first branch of the first ground of appeal, the appellants complain that the [OSCURATO:PERSONA] did not correctly interpret, in paragraph 77 of the judgment under appeal, paragraphs 64 and 65 of the judgment in Heuschen & [OSCURATO:PERSONA] (C‑375/07, EU:C:2008:645). 38 By the second branch of the first ground of appeal, the appellants submit that the [OSCURATO:PERSONA] interpretation and application of the provisions of the [OSCURATO:PERSONA] were incorrect. The appellants state that, according to those provisions, the national authorities are lacking any discretion in the implementation of the decision at issue with regard to them. 39 According to the appellants, Articles 869(b), 871(2), the second paragraph of [OSCURATO:PERSONA] 874, Articles 899(2), 905(2) and 908(1) of the [OSCURATO:PERSONA] codify the principle of the primacy of EU law. Those articles ensure that the [OSCURATO:PERSONA]’s assessment of EU law and of the facts in the decision at issue is applied in a uniform manner in all of the [OSCURATO:PERSONA] to all other economic operators who are in a comparable factual and legal situation. Consequently, neither the national authorities nor the national courts can adopt measures which are incompatible with the decision at issue. 40 The appellants submit that that finding is confirmed by paragraphs 61 and 62 of the judgment in Heuschen & [OSCURATO:PERSONA] (C‑375/07, EU:C:2008:645). 41 In addition, the appellants contend that, in accordance with [OSCURATO:PERSONA] 871(1) of the [OSCURATO:PERSONA], their dossier falls within the exclusive competence of the [OSCURATO:PERSONA]. That exclusive competence would be ended if the national authorities were able to adopt a decision different from that which the [OSCURATO:PERSONA] has already taken. 42 [OSCURATO:PERSONA] of Spain contends that, pursuant to [OSCURATO:PERSONA] 905(1) and (2) of the [OSCURATO:PERSONA], in the case of a remission of import duties, the national authorities do not have any margin of discretion enabling them to depart from the [OSCURATO:PERSONA]’s position. The only ‘margin’ available to those authorities is the power to choose to send a new dossier to the [OSCURATO:PERSONA] for decision. 43 In addition, the [OSCURATO:PERSONA] of Spain submits that [OSCURATO:PERSONA] 908 of the [OSCURATO:PERSONA] expressly provides that decisions granting the repayment or remission of import duties are to have effect in cases involving comparable issues of fact and of law. 44 [OSCURATO:PERSONA] disputes the appellants’ arguments. Findings of the [OSCURATO:PERSONA] 45 It should be recalled at the outset that the condition that a natural or legal person must be directly concerned by the decision being challenged, as provided for in the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU, requires two conditions to be satisfied, namely (i) the contested measure must directly affect the legal situation of the individual and (ii) it must leave no discretion to its addressees who are entrusted with the task of implementing it, such implementation being purely automatic and resulting from EU rules alone without the application of other intermediate rules (see, to that effect, order in [OSCURATO:PERSONA] of Agriculture and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑248/12 P, EU:C:2014:137, paragraph 21 and the case-law cited). 46 Concerning the second branch of the first ground of appeal, it should be borne in mind that, in accordance with the case-law cited in the preceding paragraph, the appellants can be considered to be directly affected by the decision at issue only if that decision, even on the assumption that it directly affects their legal situation, leaves no discretion to the Spanish authorities for the purpose of its implementation in their regard. 47 Contrary to the appellants’ submission, Articles 869(b), 871(2), the second paragraph of [OSCURATO:PERSONA] 874, Articles 899(2), 905(2) and 908(1) of the [OSCURATO:PERSONA] do not preclude any measure of discretion enjoyed by the Spanish authorities. As is apparent from paragraphs 78, 79 and 81 of the judgment under appeal, the only obligation incumbent on those authorities, pursuant to those provisions, was to await the outcome of the proceedings concerning the application for remission submitted by [OSCURATO:PERSONA], so as to be able to take into account the decision adopted by the [OSCURATO:PERSONA] when they decided on the applications submitted by the appellants. 48 However, that obligation does not preclude an assessment by the Spanish authorities. It was for them to judge the degree of similarity between the application submitted by [OSCURATO:PERSONA] and the applications submitted by the appellants. In that context, the Spanish authorities had, in particular, to take into account any particularity, of fact or of law, that characterises the specific situation of the appellants, as the [OSCURATO:PERSONA] noted in paragraph 80 of the judgment under appeal. As the [OSCURATO:PERSONA] maintains in its observations, those authorities could, in such a case, arrive at the conclusion that the specific situation of the appellants was sufficiently dissimilar from that of [OSCURATO:PERSONA] to justify a different outcome. In that regard, it is important to note that the fact that the [OSCURATO:PERSONA] sent the appellants’ dossier back to the Spanish authorities, on the ground that it had already examined the application submitted by [OSCURATO:PERSONA] whose dossier was comparable in terms of fact and of law, does not mean that their situation is so similar to that of [OSCURATO:PERSONA] that the result at the end of the assessment of their applications must necessarily be the same. 49 The finding that the national authorities exercise discretion in a case such as that in the present case is confirmed by the second paragraph of [OSCURATO:PERSONA] 874 and [OSCURATO:PERSONA] 908(1) of the [OSCURATO:PERSONA] which oblige the [OSCURATO:PERSONA] to notify the [OSCURATO:PERSONA] of the decisions it has adopted ‘in order to help customs authorities to reach decisions’ in such cases. 50 In addition, contrary to what the appellants assert, it is not apparent from paragraphs 61 and 62 of the judgment in Heuschen & [OSCURATO:PERSONA] (C‑375/07, EU:C:2008:645) that the [OSCURATO:PERSONA] interpreted the provisions of the [OSCURATO:PERSONA] in such a way as to deprive the authorities or the national courts of any measure of discretion in a case such as that in the present case. 51 It follows from the foregoing that the second part of the first ground of appeal must be dismissed as being manifestly unfounded. 52 Concerning the first part of the first ground of appeal, it must be pointed out that, in accordance with settled case-law, where one of the grounds adopted by the [OSCURATO:PERSONA] is sufficient to sustain the operative part of its judgment, any defects that might vitiate other grounds given in the judgment concerned in any event have no bearing on that operative part and, accordingly, a plea relying on such defects is ineffective and must be dismissed (see, inter alia, judgments in [OSCURATO:PERSONA] v CAS Succhi di Frutta , C‑496/99 P, EU:C:2004:236, paragraph 68, and [OSCURATO:PERSONA] v [OSCURATO:PERSONA] , C‑416/11 P, EU:C:2012:761, paragraph 45). 53 It follows from paragraphs 46 to 51 of the present order that the [OSCURATO:PERSONA] was right to find, in the judgment under appeal, that the decision at issue did not directly affect the appellants’ legal situation, and that finding has not been properly called into question by the appellants. 54 Accordingly, any error of law made by the [OSCURATO:PERSONA] in the interpretation of paragraphs 64 and 65 of the judgment in Heuschen & [OSCURATO:PERSONA] (C‑375/07, EU:C:2008:645) would, in any event, have had no effect on the outcome of the actions at first instance and thus would have had no bearing on the operative part of the judgment under appeal. 55 Consequently, the first part of the first ground of appeal must be rejected and, accordingly, that ground of appeal must be rejected in its entirety as manifestly unfounded. The second ground of appeal Arguments of the parties 56 By their second ground of appeal, the appellants argue that, even if the Spanish authorities had discretion in the implementation of the decision at issue, the [OSCURATO:PERSONA] erred in law because the mere existence of discretion is insufficient to prevent that decision from being of direct concern to the appellants. That ground of appeal is divided into two parts. 57 By the first part of the second ground of appeal, the appellants claim that it is apparent from the judgment in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑366/03 and T‑235/04, EU:T:2005:347, paragraph 29) that, if the addressee of a [OSCURATO:PERSONA] decision does not exercise any discretion when it implements and notifies that decision to a third party, that party is directly concerned by that decision. According to the appellants, the [OSCURATO:PERSONA] erred in law because it failed to consider that legal principle or erred in its application. 58 By the second part of the second ground of appeal, the appellants assert that, even if the Spanish authorities had discretion, such discretion was purely theoretical. According to the appellants, it is clear from the case-law of the [OSCURATO:PERSONA] that, when the possibility for addresses not to give effect to the measure of EU law is purely theoretical, such measure is of direct concern to that third party (judgments in Piraiki-Patraiki and Others v [OSCURATO:PERSONA] , 11/82, EU:C:1985:18, paragraphs 8 to 10, and Dreyfus v [OSCURATO:PERSONA] , C‑386/96 P, EU:C:1998:193, paragraph 44). The appellants submit that the [OSCURATO:PERSONA] erred in law because it failed to consider that legal principle or erred in its application. 59 According to the [OSCURATO:PERSONA] of Spain, it is apparent from [OSCURATO:PERSONA] 905(2) and (6) of the [OSCURATO:PERSONA] that the Spanish authorities do not have any margin of discretion enabling them to move away from the [OSCURATO:PERSONA]’s position. The only margin available to those authorities is the power to choose to send a new dossier to the [OSCURATO:PERSONA] for decision. 60 [OSCURATO:PERSONA] of Spain recalls in this context that the [OSCURATO:PERSONA] services expressly stated, after a concrete and individual examination, that the situation of the appellants and that of [OSCURATO:PERSONA] had characteristics which presented comparable issues of fact and of law. 61 [OSCURATO:PERSONA] disputes the appellants’ arguments. Findings of the [OSCURATO:PERSONA] 62 So far as concerns the first part of the second ground of appeal, it should be borne in mind that it is apparent from the case-law cited in paragraph 45 of the present order that the condition that a natural or legal person must be directly concerned by the decision being challenged, as provided for in the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU, requires two conditions to be satisfied. The second of those conditions requires that the contested measure does not leave any discretion to its addressees who are entrusted with the task of implementing it. Contrary to the appellants’ submission, the failure to exercise discretion is not therefore a relevant criterion for determining whether a natural or legal person is directly concerned by such a measure, as provided for in the fourth paragraph of [OSCURATO:PERSONA] 263 TFEU. 63 In addition, as the [OSCURATO:PERSONA] notes in its observations, the judgment in [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (T‑366/03 and T‑235/04, EU:T:2005:347) concerned a situation in which the addressee of the decision, the [OSCURATO:PERSONA] of Austria, did not have any discretion, since its role was limited to communicating the [OSCURATO:PERSONA]’s decision to the region concerned. That is how the words ‘did not exercise any discretion’, found in paragraph 29 of that judgment, must be construed. That judgment is not therefore capable of supporting the appellants’ assertions. 64 It follows from the foregoing that the first part of the second ground of appeal must be dismissed as being manifestly unfounded. 65 So far as concerns the second part of the second ground of appeal, it should be borne in mind that the [OSCURATO:PERSONA] has consistently held that a submission made for the first time in an appeal before the [OSCURATO:PERSONA] must be rejected as inadmissible. In an appeal, the [OSCURATO:PERSONA] jurisdiction is confined to a review of the assessment by the [OSCURATO:PERSONA] of the pleas argued before it. To allow a party to put forward, in an appeal, a plea which it has not raised before the [OSCURATO:PERSONA] would mean allowing that party to bring before the [OSCURATO:PERSONA] of Justice, whose jurisdiction in appeals is limited, a case of wider scope than the one heard by the [OSCURATO:PERSONA]. 66 It must be stated, however, that the appellants did not claim before the [OSCURATO:PERSONA] that, even if the Spanish authorities had discretion, such discretion was purely theoretical. Consequently, the second part of the second ground of appeal must be rejected as manifestly inadmissible. 67 The second ground of appeal must therefore be rejected in its entirety as being, in part, manifestly unfounded and, in part, manifestly inadmissible. The third ground of appeal Arguments of the parties 68 According to the appellants, the [OSCURATO:PERSONA] erred, in paragraph 86 of the judgment under appeal, in the legal characterisation of the evidence, or distorted the evidence. The appellants consider that the [OSCURATO:PERSONA] incorrectly described the decision of the Spanish authorities rejecting their application for the remission of import duties. According to them, the Spanish authorities did not ‘take care’ in establishing that the conclusions contained in the contested decision applied equally to the appellants. In actual fact, their decision represents only a ‘notification’ or a ‘mere reproduction’ of the decision at issue. 69 [OSCURATO:PERSONA] of Spain states that it has nothing to add to what is set out in the appellants’ appeals. 70 [OSCURATO:PERSONA] disputes the appellants’ arguments. Findings of the [OSCURATO:PERSONA] 71 The arguments put forward by the appellants in support of the third ground of appeal cannot succeed. 72 That ground of appeal is ineffective. Even if it were correct to consider, like the appellants, that the [OSCURATO:PERSONA] erred, in paragraph 86 of the judgment under appeal, in its description of the actions of the Spanish authorities, that would not mean that those authorities did not have a discretion, which constitutes the relevant criterion. As is apparent from paragraphs 48 and 49 of the present order, the Spanish authorities had a discretion. 73 The third ground of appeal must therefore be dismissed. 74 In the light of all the foregoing observations, the appeal must be dismissed in its entirety. Costs 75 [OSCURATO:PERSONA] 138(1) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, which applies to appeal proceedings by virtue of [OSCURATO:PERSONA] 184(1) thereof, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the appellants have been unsuccessful, they must be ordered to pay the costs, as applied for by the [OSCURATO:PERSONA]. 76 In accordance with [OSCURATO:PERSONA] 140(1) of the Rules of Procedure, which also applies to appeal proceedings by virtue of [OSCURATO:PERSONA] 184(1) of those rules, the [OSCURATO:PERSONA] which have intervened in the proceedings are to bear their own costs. [OSCURATO:PERSONA] of Spain must be ordered to bear its own costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: 1. The appeal is dismissed. 2. Makro autoservicio mayorista SA and [OSCURATO:PERSONA] SL shall pay the costs. 3. [OSCURATO:PERSONA] of Spain shall bear its own costs. [Signatures] * Language of the case: English.
Sentenza Corte di giustizia UE n. 2700/2016 — Fons Iuris — Fons Iuris