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Corte di giustizia UEsentenza

Corte di giustizia UE n. 1344/2018

ECLI:EU:C:2018:442
Testo integrale del provvedimento

Testo integrale del provvedimento

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

14 June 2018 ( * ) (Appeal — [OSCURATO:PERSONA] — Autonomous customs duties on certain agricultural and industrial products — Applications for tariff suspensions — [OSCURATO:PERSONA] (EU) No 1344/2011 — [OSCURATO:PERSONA] suspensions granted — Objection — [OSCURATO:PERSONA] (EU) No 1387/2013 — Termination of the suspensions at issue — Comparable products available in sufficient quantities on the [OSCURATO:PERSONA] market)

[OSCURATO:PERSONA] C‑223/17 P,

APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 26 April 2017,

[OSCURATO:SOCIETA],

established in Rouen ([OSCURATO:PERSONA]), represented by R. MacLean, Solicitor, and by A. Bochon, lawyer, appellant, the other parties to the proceedings being: [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], represented by M. Balta and by F. [OSCURATO:PERSONA], acting as Agents, defendant at first instance,

[OSCURATO:PERSONA],

represented by A. Lewis and A. Caeiros, acting as Agents, intervener at first instance,

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

composed of E. [OSCURATO:PERSONA] (Rapporteur), [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], A. [OSCURATO:PERSONA] and F. [OSCURATO:PERSONA], [OSCURATO:PERSONA],

[OSCURATO:PERSONA]: E. [OSCURATO:PERSONA],

[OSCURATO:PERSONA]: A. [OSCURATO:PERSONA],

having regard to the written procedure, having decided, after hearing the [OSCURATO:PERSONA], to proceed to judgment without an Opinion, gives the following

[OSCURATO:PERSONA]

1 By its appeal, [OSCURATO:SOCIETA] (‘[OSCURATO:PERSONA]’) asks the [OSCURATO:PERSONA] to set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 16 February 2017 —

[OSCURATO:SOCIETA]

v

[OSCURATO:PERSONA]

(T‑191/14, not published, ‘the judgment under appeal’, EU:T:2017:90), by which that [OSCURATO:PERSONA] dismissed as unfounded the action brought by [OSCURATO:PERSONA] seeking the annulment of Articles 1 and 4 of [OSCURATO:PERSONA] (EU) No 1387/2013 of 17 December 2013 suspending the autonomous [OSCURATO:PERSONA] duties on certain agricultural and industrial products and repealing [OSCURATO:PERSONA] (EU) No 1344/2011 (OJ 2013 L 354, p. 201, ‘the regulation at issue’), to the extent that those measures deprived [OSCURATO:PERSONA] of its entitlement to three duty suspensions which it previously enjoyed under codes 2918 2900 80, 3811 2900 10 and 3811 9000 30 under the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] (TARIC).

Legal context 2 [OSCURATO:PERSONA] from the [OSCURATO:PERSONA] concerning autonomous tariff suspensions and quotas (2011/C 363/02 ) (OJ 2011 C 363, p. 6, ‘the [OSCURATO:PERSONA]’s communication’) sets out, inter alia, the general guidelines by which the [OSCURATO:PERSONA] is bound in its proposals to the [OSCURATO:PERSONA]. 3 Paragraph 3.2 of the [OSCURATO:PERSONA]’s communication provides: ‘In principle, unless the [OSCURATO:PERSONA] interest dictates otherwise, and in deference to international obligations, no tariff suspension or quota measure will be proposed in the following situations: where identical, equivalent or substitute products are manufactured in sufficient quantities within the [OSCURATO:PERSONA]. ... ...’ 4 [OSCURATO:PERSONA] paragraph 3.3, it is stated: ‘Where there is some [OSCURATO:PERSONA] production of identical, equivalent or substitute products to the product to be imported but such production is insufficient to meet the requirements of all the relevant processing or manufacturing companies, tariff quotas (limited to the unavailable quantities) or partial tariff suspensions may be granted.’ ...’ 5 Paragraph 3.4 of the [OSCURATO:PERSONA]’s communication is worded as follows: ‘As far as possible, the equivalence of imported and [OSCURATO:PERSONA] products is assessed with reference to objective criteria, due account being taken of the essential chemical, physical and technical characteristics of each, their intended function and commercial use and, in particular, their mode of operation and their current or future availability on the [OSCURATO:PERSONA] market. ...’ 6 Paragraph

4.5.3. of that communication states: ‘[OSCURATO:PERSONA] may reject an objection when it was sent late, the form was not sufficiently filled in, requested samples were not made available, contacts between the opposing and requesting companies were not made in due time (ca. 15 working days) or the objection form contained misleading or inaccurate information. ...’ 7 Annex IV to the [OSCURATO:PERSONA]’s communication consists of a form which must be completed in order to object to an application for tariff suspension.

Part II of that form requires the objector’s production capacity to be indicated.

Background to the dispute 8 [OSCURATO:PERSONA] summarised the background to the case, in paragraphs 1 to 8 and 11 of the judgment under appeal, as follows: ‘1 The applicant ... is a company which manufactures and sells additives for engine oil, fuel and other industrial uses. 2 On 30 January and 9 February 2012, the applicant filed three requests for suspension of the autonomous customs duties applied by the [OSCURATO:PERSONA] covering a range of products which it was importing from companies connected with it and registered in the [OSCURATO:PERSONA].

One of the suspension applications was filed with the competent authorities of the [OSCURATO:PERSONA] of Belgium and the other two were filed with those of the [OSCURATO:PERSONA]. 3 [OSCURATO:PERSONA] of Belgium and the [OSCURATO:PERSONA] submitted the suspension requests to the [OSCURATO:PERSONA] (‘the ETQG’), whose task is to support the [OSCURATO:PERSONA] in the examination of requests for suspension of customs duties or tariff quota volumes, in accordance with paragraph 4.1.5 of the [[OSCURATO:PERSONA] from the [OSCURATO:PERSONA]]. 4 The examination of the suspension applications by the ETQG was concluded with the submission of a proposal for a regulation to the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] for the adoption of the proposed duty suspensions. 5 [OSCURATO:PERSONA] (EU) No 1232/2012 of 17 December 2012 amending [OSCURATO:PERSONA] (EU) No 1344/2011 suspending the autonomous [OSCURATO:PERSONA] duties on certain agricultural, fishery and industrial products (OJ 2012 L 350, p. 8) granted suspensions of customs duties for the products which were the subject of the applicant’s requests made to the competent Belgian and [OSCURATO:PERSONA] authorities and listed those products in Annex I to [OSCURATO:PERSONA] [No 1344/2011], by allocating to each of them a specific code under the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] (TARIC). ... 6 After the entry into force of [OSCURATO:PERSONA] 1232/2012, the competent Belgian and [OSCURATO:PERSONA] authorities notified the applicant that a company established in the [OSCURATO:PERSONA] (‘the objector’) had challenged the continued implementation of the suspensions granted by that regulation in respect of the products imported by the applicant. 7 In emails of 10 and 30 May 2013, the applicant indicated to the objector that the objector’s products were not comparable to those covered by the customs duties suspensions, or that if they were, they could not replace the products imported, in that, since the resulting additive packages of the objector were different from those the applicant produced, those packages would not meet the specifications of its [OSCURATO:PERSONA] customers.

In addition, the applicant requested that the objector provide further information confirming, inter alia, whether the products which it manufactured could be substituted for the imported products, but it did not receive any reply from the objector. 8 By emails of 4 and 5 July and 16 August 2013, the objector replied to the applicant with clarifications concerning the three products presented as comparable to the products covered by the suspensions of customs duties under [OSCURATO:PERSONA] 1232/2012. ... 11 The ETQG met on 12 and 13 July 2013, and, although no other meeting was arranged, discussions nevertheless continued to take place.

On 3 September 2013, the [OSCURATO:PERSONA] then decided not to reject the objections raised by the objector.

Consequently, the [OSCURATO:PERSONA] adopted the [contested] regulation. [OSCURATO:PERSONA] 1 of the regulation at issue provides that the autonomous [OSCURATO:PERSONA] duties for the agricultural and industrial products listed in Annex I to that regulation are suspended and [OSCURATO:PERSONA] 4 provides that [OSCURATO:PERSONA] 1344/2011 is repealed ...

It follows that the suspensions of customs duties covering the products imported by the applicant were repealed, with effect from 1 January 2014.’ The procedure before the [OSCURATO:PERSONA] and the judgment under appeal 9 By application lodged at the [OSCURATO:PERSONA] on 21 March 2014, the appellant brought an action for annulment of Articles 1 and 4 of the regulation at issue. 10 By separate document lodged at the [OSCURATO:PERSONA] on 27 May 2014, the [OSCURATO:PERSONA] raised an objection of inadmissibility on the ground that the appellant was not entitled to bring an action for annulment on the basis of [OSCURATO:PERSONA] 263 TFEU. 11 By document lodged at the [OSCURATO:PERSONA] on 20 June 2014, the [OSCURATO:PERSONA] applied for leave to intervene in support of the form of order sought by the [OSCURATO:PERSONA]. 12 By order of 15 September 2014 of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], the proceedings were stayed pending the decision of the [OSCURATO:PERSONA] of Justice in the case which has since given rise to the order of 14 July 2015,

[OSCURATO:PERSONA]

v

[OSCURATO:PERSONA]

(C‑84/14 P, not published, EU:C:2015:517). 13 By order of the [OSCURATO:PERSONA] of 14 December 2015, the objection of inadmissibility was joined to the substance of the case and costs were reserved. 14 After stating, in paragraph 33 of the judgment under appeal, that, for the sake of economy of procedure, [OSCURATO:PERSONA]’s claim for annulment should be considered as a whole, the [OSCURATO:PERSONA] examined the two pleas put forward, namely the first, alleging manifest error of assessment by the [OSCURATO:PERSONA] in deciding to terminate the suspensions at issue and the second, alleging breach of essential procedural requirements and safeguards in adopting the regulation at issue. 15 As regards the first plea, the [OSCURATO:PERSONA] first of all noted, in paragraph 58 of the judgment under appeal, that the [OSCURATO:PERSONA] had a broad discretion with regard to the adoption of suspension measures, so that the EU judicature’s judicial review of such decisions must be confined to verifying whether the procedural rules and the duty to state reasons have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error of assessment or a misuse of powers. 16 After holding, in paragraphs 62 to 64 of the judgment under appeal, that the regulation at issue had been adopted in accordance with the procedure required by the [OSCURATO:PERSONA]’s communication, the [OSCURATO:PERSONA] went on to reject the appellant’s arguments in support of its first plea. 17 In paragraph 66 of the judgment under appeal, the [OSCURATO:PERSONA] recognised that while the objector’s reply concerning its production capacity might lead to confusion, the fact remained that, in essence, it had simply stated that it was able to provide goods similar to those required for the production of the appellant’s products and that it was not the only undertaking in that regard. 18 Next, in paragraph 67 of the judgment under appeal, the [OSCURATO:PERSONA] found that the [OSCURATO:PERSONA] had the information necessary for the purposes of examining the objection raised by the objector, so that it concluded, in paragraph 68 of that judgment, that the [OSCURATO:PERSONA] had not committed a manifest error in its assessment of the identity, the equivalence or the substitutability of the products in question. 19 Finally, the [OSCURATO:PERSONA] rejected the appellant’s other arguments in paragraphs 70 to 86 of the contested judgment. 20 It thus took the view that the information contained in the form accompanying the objection showed clearly that the products in question were regarded by the objector as being substitutable. 21 Similarly, the [OSCURATO:PERSONA] found that the appellant had not provided sufficient relevant information to support its assertion that the imported products constituted unique products which were not substitutable. 22 Furthermore, the [OSCURATO:PERSONA] pointed out, in paragraph 78 of the judgment under appeal, that the assessment of the criteria used for the purposes of examining the identity, the equivalence or the substitutability of the products in question is guided, according to the [OSCURATO:PERSONA]’s communication, by the general interest of the [OSCURATO:PERSONA] and by that of economic operators, so that any technical and economic disadvantages as a result of the use of a substitute alone cannot be decisive. 23 Regarding the examination of the criteria laid down in the [OSCURATO:PERSONA]’s communication, the [OSCURATO:PERSONA] stated that there was no hierarchy between them, so that the [OSCURATO:PERSONA] had to take into account not only the technical criteria of the products in question but also those linked to their function and commercial use. 24 As regards the second plea alleging a wrongful application of the procedures, the [OSCURATO:PERSONA] found that the time limit laid down in paragraph 4.5.3 of the [OSCURATO:PERSONA]’s communication concerned the first contact between the objector and the appellant.

Therefore, it rejected the appellant’s objections relating to the answers submitted by the objector after the expiry of the above time limit and dismissed the action in its entirety.

Forms of order sought by the parties to the appeal 25 The appellant claims that the [OSCURATO:PERSONA] should: – set aside the judgment under appeal; – partially annul the regulation at issue; and – order the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] to pay the costs. 26 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: – dismiss the appeal; and – order the appellant to pay the costs.

The appeal 27 In support of its appeal, the appellant submits three grounds of appeal alleging, respectively, incorrect application of the criteria laid down in the [OSCURATO:PERSONA]’s communication, distortion of the evidence, and failure to comply with requirements relating to the objection procedure as laid down in that communication.

The first ground of appeal Arguments of the parties 28 The first ground of appeal is divided into three parts. 29 First, the appellant states that the [OSCURATO:PERSONA] confined itself to a purely formal analysis of the documents and information provided by the objector during the objection procedure.

In so doing, it was unable to draw the appropriate inferences from the objector’s assertion that it was not able to supply the product it produces in sufficient quantities to meet the appellant’s requirements. 30 In particular, the [OSCURATO:PERSONA] wrongly held, in paragraph 66 of the judgment under appeal, that the fact that the objector had expressed its inability to supply the product it manufactures in sufficient quantities to meet the appellant’s requirements was irrelevant. [OSCURATO:PERSONA] relied on erroneous information, which was, in any event, submitted late, and also distorted the evidence. 31 Second, the [OSCURATO:PERSONA] did not take into account the arguments put forward by the appellant in the objection procedure as to the insufficient substitutability of the products in question, in particular in view of the differences highlighted as regards their chemical properties. 32 Third, the [OSCURATO:PERSONA] failed to censure the regulation at issue on the ground that the examination of the substitutability of the products in question had been conducted by favouring the assessment criteria relating to their function and commercial use, to the detriment of the technical and scientific criteria, which, however, showed the difference between those products. 33 In any event, the [OSCURATO:PERSONA]’s assessment of the interchangeability of the products in question, which led to the adoption of the regulation at issue, was examined by the [OSCURATO:PERSONA] on the basis of incorrect criteria.

In that regard, if it had applied technical criteria, the [OSCURATO:PERSONA] would have had to substitute its own assessment for that of the [OSCURATO:PERSONA]. 34 [OSCURATO:PERSONA] submits that the appellant’s first ground of appeal is inadmissible in so far as it merely requests a new assessment of the facts at the appeal stage. 35 [OSCURATO:PERSONA] pleads, principally, the inadmissibility of the ground of appeal and, in the alternative, that that ground of appeal is unfounded; in particular, the [OSCURATO:PERSONA] merely applied the case-law principles as to judicial review of the [OSCURATO:PERSONA]’s assessments in relation to the suspension of tariff duties, observing the requirements of the [OSCURATO:PERSONA]’s communication.

Findings of the [OSCURATO:PERSONA] 36 It must be pointed out, at the outset, that the [OSCURATO:PERSONA] correctly noted, in paragraphs 58 to 61 of the judgment under appeal, the limits to review of [OSCURATO:PERSONA] decisions which the [OSCURATO:PERSONA] is required to carry out in the context of the adoption of measures suspending tariff duties. 37 Thus, it is common ground that, as the [OSCURATO:PERSONA] enjoys a broad discretion in that context, the EU judicature’s review of the [OSCURATO:PERSONA]’s decisions must be confined to verifying whether the procedural rules and the duty to state reasons have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error of assessment or a misuse of powers. 38 As regards the first part of the first ground of appeal, by which the appellant alleges that the [OSCURATO:PERSONA] did not carry out a thorough analysis of the [OSCURATO:PERSONA]’s assessments and merely conducted a purely formal examination of the procedure, it should be noted, first, that, having regard to the extent of the judicial review, as noted in the preceding paragraph of this judgment, which the [OSCURATO:PERSONA] is to conduct, it is certainly not for the [OSCURATO:PERSONA] to substitute its own assessment of complex facts at issue, concerning applications for suspension of tariff duties, for that of the [OSCURATO:PERSONA], since its review must be confined to that of manifest error of assessment. 39 Second, in so far as the appellant alleges that the [OSCURATO:PERSONA] failed to examine the evidence relied on by the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] correctly pointed out, in paragraph 59 of the judgment under appeal, that, in order to establish that an institution committed a manifest error in assessing complex facts so as to justify the annulment of the measure which it adopted, the evidence in support of such a claim must be sufficient to render the factual assessments adopted in that measure implausible. 40 In that regard, first, it must be observed that, in alleging that the [OSCURATO:PERSONA] did not take into consideration the fact that the objector had stated that it was not able to supply the replacement product in sufficient quantities, the appellant misreads the judgment under appeal. 41 In paragraph 66 of that judgment, the [OSCURATO:PERSONA] held that the objector had never altered its statement concerning its production capacity; the objector had merely added a nuance to the terms used by the appellant in its comments on the objector’s objection. 42 Second, as regards the alleged confusion between the terms ‘production capacity’ and availability in ‘sufficient quantities’, while it is true that the wording of paragraph 3.2 of the [OSCURATO:PERSONA]’s communication uses the latter expression, the [OSCURATO:PERSONA] cannot be criticised for inferring from the objector’s information relating to its production capacity, as it emerges from the objection form, that the substitute product was manufactured in sufficient quantities within the [OSCURATO:PERSONA]. 43 The taking into account of the production capacity of a company objecting to a tariff suspension measure, which must be stated in the objection form, cannot constitute an error of law as regards the assessment of the availability of a substitute product in sufficient quantities. 44 In any event, it must be held, first, that the appellant merely puts forward an understanding of the information given by the objector in the objection form as to the availability of the product manufactured by the latter that differs from the [OSCURATO:PERSONA] understanding, and, second, that the appellant is asking for a new assessment of the facts by the [OSCURATO:PERSONA] of Justice at the appeal stage. 45 In that regard, the [OSCURATO:PERSONA] assessment of the facts of the case before it does not constitute a point of law falling within the scope of the [OSCURATO:PERSONA] power of review, unless the [OSCURATO:PERSONA] findings are vitiated by a substantive error or a distortion which is manifest from the documents in the file (judgment of 11 January 2017, Typke v

[OSCURATO:PERSONA]

, C‑491/15 P, EU:C:2017:5, paragraph 58). 46 In addition, the appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support thereof.

A ground of appeal does not meet those requirements where it does not contain any legal argument to demonstrate the manner in which the [OSCURATO:PERSONA] allegedly erred in law, and merely constitutes a request for re-examination of the action brought at first instance, in breach of the rules imposed by both the Statute of the [OSCURATO:PERSONA] of Justice and its Rules of Procedure (order of 1 February 2017, Šumelj and Others v

[OSCURATO:PERSONA]

, C‑239/16 P, EU:C:2017:91, paragraph 24). 47 The appellant has failed to show that the [OSCURATO:PERSONA] findings are vitiated by a manifest distortion of the documents which were submitted to it, as it merely claims, in essence, that the [OSCURATO:PERSONA] assessment of the facts is not in line with its interests. 48 As regards the second part of the first ground of appeal, by which the appellant complains that the [OSCURATO:PERSONA] did not attribute sufficient weight to the comments it had addressed to the objector in the objection procedure regarding differences between the products in question, it must be pointed out that, in paragraph 73 of the judgment under appeal, the [OSCURATO:PERSONA] found that the appellant had failed to provide evidence to support its allegation.

Such a finding is all the more compelling in the light of the appellant’s pleadings, since, at the appeal stage, it was for the appellant to prove that the [OSCURATO:PERSONA] distorted the facts submitted to it. 49 In addition, it was in light of the lack of evidence to the contrary that the [OSCURATO:PERSONA] held that the appellant’s argument, namely that none of the objector’s products could be regarded as identical, equivalent or substitutable to the appellant’s products benefiting from the suspensions at issue, could not lead to an assessment different from that made by the [OSCURATO:PERSONA]. 50 As regards, lastly, the third part of the first ground of appeal, by which the appellant complains that the [OSCURATO:PERSONA] favoured, in its review of the [OSCURATO:PERSONA]’s assessment of the substitutability of the products in question, the criteria relating to the function and commercial use of those products, to the detriment of the technical criteria, the [OSCURATO:PERSONA] rightly held, in paragraph 83 of the judgment under appeal, that such an assessment must be an overall assessment, since it did not appear to follow from paragraph 3.4 of the [OSCURATO:PERSONA]’s communication that that provision establishes a hierarchy between the objective criteria which it lays down. 51 In any event, the [OSCURATO:PERSONA] recalled in paragraphs 64 and 85 of the judgment under appeal that the ETQG had carried out an examination of the essential chemical, physical and technical characteristics of the products in question, before concluding that the products were identical, similar or substitutable products. 52 Consequently, and since, as is clear from paragraphs 37 and 38 of the present judgment, the [OSCURATO:PERSONA] confined its review to that of a manifest error of assessment, it cannot be criticised for having endorsed the findings of the ETQG which took into account all the criteria set out in paragraph 3.4 of the [OSCURATO:PERSONA]’s communication. 53 Since the appellant has failed to show that the [OSCURATO:PERSONA] committed an error of law, the first ground of appeal must be rejected as unfounded.

The second ground of appeal Arguments of the parties 54 By its second ground of appeal, the appellant claims, first, that the [OSCURATO:PERSONA] substituted its own assessment of the identical, comparable or substitutable nature of the products at issue for that of the [OSCURATO:PERSONA]. 55 Second, the [OSCURATO:PERSONA] distorted the evidence by not finding that the objector had recognised its inability to provide the product it manufactures in the required quantity. 56 [OSCURATO:PERSONA] pleads the inadmissibility of the second ground of appeal on the ground that the appellant has not put forward any plea in law in support of its claims. 57 [OSCURATO:PERSONA] pleads, primarily, that the second ground of appeal is inadmissible and in any case, unfounded.

Findings of the [OSCURATO:PERSONA] 58 It must be pointed out that, in paragraphs 71 and 72 of the judgment under appeal, the [OSCURATO:PERSONA] held, in the light of the evidence available to it, that the objector had not expressed its inability to provide the product manufactured by it in the required quantity but had explained that its product was not manufactured in the [OSCURATO:PERSONA] or in Turkey. 59 The appellant does not show that the [OSCURATO:PERSONA] had a different understanding of the evidence than that of the [OSCURATO:PERSONA], since, in any event, the latter confirmed the findings of the [OSCURATO:PERSONA]. 60 Furthermore, the appellant has failed to adduce evidence to support the conclusion that, in so doing, the [OSCURATO:PERSONA] distorted the evidence. 61 Accordingly, the second ground of appeal must be rejected as unfounded.

The third ground of appeal Arguments of the parties 62 By its third ground of appeal, the appellant claims that the [OSCURATO:PERSONA] infringed the principles of the [OSCURATO:PERSONA]’s communication, by stating in paragraph 98 of the judgment under appeal, that the period of 15 working days can apply only to the initiation of contact between the objector and the appellant and not to their subsequent exchanges. 63 Thus, it adopted an imprecise understanding of ‘in due time’, an erroneous interpretation of ‘first contact’, and misconstrued the objection in the exchange between the parties, confusing their rights in such a procedure. 64 [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] contend that the second ground of appeal is inadmissible. 65 In the alternative, the [OSCURATO:PERSONA] considers that the ground of appeal is unfounded.

Findings of the [OSCURATO:PERSONA] 66 It should be recalled that, in paragraph 4.5.3 of the [OSCURATO:PERSONA]’s communication, the contacts between the company which objects to an application for tariff suspension and the company which submits it, must take place in due time, namely, approximately 15 working days, otherwise the [OSCURATO:PERSONA] may reject the objection. 67 Thus, it follows from the very wording of that provision that the period of 15 days is approximate and non-binding as regards the [OSCURATO:PERSONA]’s decision.

Consequently, that period is primarily addressed to the [OSCURATO:PERSONA], as it has the discretion to reject an objection if the latter has not been communicated within that period. 68 It is not apparent, however, from the wording of that provision of paragraph 4.5.3 of the [OSCURATO:PERSONA]’s communication that the period of 15 days concerns all contacts between the company objecting to an application for suspension of autonomous duties and the company which submits that application.

On the contrary, the exchanges must make it possible for the [OSCURATO:PERSONA] to have at its disposal the most comprehensive information possible concerning the identical, comparable or substitutable nature of the product on which the objection is based.

An overly restrictive limitation of the period during which such exchanges must take place might lead the [OSCURATO:PERSONA] to adopt a decision on the objection without the relevant information for that purpose. 69 Accordingly, the second ground of appeal must be rejected as unfounded. 70 In view of all the foregoing considerations, the appeal must be dismissed in its entirety.

Costs 71 [OSCURATO:PERSONA] 184(2) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, where the appeal is unfounded or where the appeal is well founded and the [OSCURATO:PERSONA] itself gives final judgment in the case, the [OSCURATO:PERSONA] is to make a decision as to costs. 72 [OSCURATO:PERSONA] 138(1) of those Rules, applicable 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 [OSCURATO:PERSONA] has applied for costs against the appellant and the latter has been unsuccessful, it must be ordered to pay, in addition to its own costs, those incurred by the [OSCURATO:PERSONA] in the context of the present appeal. 73 Pursuant to [OSCURATO:PERSONA] 140 of those Rules, the [OSCURATO:PERSONA] is to bear its own costs.

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

1. Dismisses the appeal;

2. [OSCURATO:SOCIETA] to bear its own costs and to pay those incurred by the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA];

3. [OSCURATO:PERSONA] the [OSCURATO:PERSONA] to bear its own costs. [OSCURATO:PERSONA] in open court in Luxembourg on 14 June 2018.

A. [OSCURATO:PERSONA]

E. [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] * Language of the case: English.

Anonimizzato ex art. 52 D.Lgs. 196/2003
[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 14 June 2018 ( * ) (Appeal — [OSCURATO:PERSONA] — Autonomous customs duties on certain agricultural and industrial products — Applications for tariff suspensions — [OSCURATO:PERSONA] (EU) No 1344/2011 — [OSCURATO:PERSONA] suspensions granted — Objection — [OSCURATO:PERSONA] (EU) No 1387/2013 — Termination of the suspensions at issue — Comparable products available in sufficient quantities on the [OSCURATO:PERSONA] market) [OSCURATO:PERSONA] C‑223/17 P, APPEAL under [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], brought on 26 April 2017, [OSCURATO:SOCIETA], established in Rouen ([OSCURATO:PERSONA]), represented by R. MacLean, Solicitor, and by A. Bochon, lawyer, appellant, the other parties to the proceedings being: [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], represented by M. Balta and by F. [OSCURATO:PERSONA], acting as Agents, defendant at first instance, [OSCURATO:PERSONA], represented by A. Lewis and A. Caeiros, acting as Agents, intervener at first instance, [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of E. [OSCURATO:PERSONA] (Rapporteur), [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], A. [OSCURATO:PERSONA] and F. [OSCURATO:PERSONA], [OSCURATO:PERSONA], [OSCURATO:PERSONA]: E. [OSCURATO:PERSONA], [OSCURATO:PERSONA]: A. [OSCURATO:PERSONA], having regard to the written procedure, having decided, after hearing the [OSCURATO:PERSONA], to proceed to judgment without an Opinion, gives the following [OSCURATO:PERSONA] 1 By its appeal, [OSCURATO:SOCIETA] (‘[OSCURATO:PERSONA]’) asks the [OSCURATO:PERSONA] to set aside the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 16 February 2017 — [OSCURATO:SOCIETA] v [OSCURATO:PERSONA] (T‑191/14, not published, ‘the judgment under appeal’, EU:T:2017:90), by which that [OSCURATO:PERSONA] dismissed as unfounded the action brought by [OSCURATO:PERSONA] seeking the annulment of Articles 1 and 4 of [OSCURATO:PERSONA] (EU) No 1387/2013 of 17 December 2013 suspending the autonomous [OSCURATO:PERSONA] duties on certain agricultural and industrial products and repealing [OSCURATO:PERSONA] (EU) No 1344/2011 (OJ 2013 L 354, p. 201, ‘the regulation at issue’), to the extent that those measures deprived [OSCURATO:PERSONA] of its entitlement to three duty suspensions which it previously enjoyed under codes 2918 2900 80, 3811 2900 10 and 3811 9000 30 under the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] (TARIC). Legal context 2 [OSCURATO:PERSONA] from the [OSCURATO:PERSONA] concerning autonomous tariff suspensions and quotas (2011/C 363/02 ) (OJ 2011 C 363, p. 6, ‘the [OSCURATO:PERSONA]’s communication’) sets out, inter alia, the general guidelines by which the [OSCURATO:PERSONA] is bound in its proposals to the [OSCURATO:PERSONA]. 3 Paragraph 3.2 of the [OSCURATO:PERSONA]’s communication provides: ‘In principle, unless the [OSCURATO:PERSONA] interest dictates otherwise, and in deference to international obligations, no tariff suspension or quota measure will be proposed in the following situations: where identical, equivalent or substitute products are manufactured in sufficient quantities within the [OSCURATO:PERSONA]. ... ...’ 4 [OSCURATO:PERSONA] paragraph 3.3, it is stated: ‘Where there is some [OSCURATO:PERSONA] production of identical, equivalent or substitute products to the product to be imported but such production is insufficient to meet the requirements of all the relevant processing or manufacturing companies, tariff quotas (limited to the unavailable quantities) or partial tariff suspensions may be granted.’ ...’ 5 Paragraph 3.4 of the [OSCURATO:PERSONA]’s communication is worded as follows: ‘As far as possible, the equivalence of imported and [OSCURATO:PERSONA] products is assessed with reference to objective criteria, due account being taken of the essential chemical, physical and technical characteristics of each, their intended function and commercial use and, in particular, their mode of operation and their current or future availability on the [OSCURATO:PERSONA] market. ...’ 6 Paragraph 4.5.3. of that communication states: ‘[OSCURATO:PERSONA] may reject an objection when it was sent late, the form was not sufficiently filled in, requested samples were not made available, contacts between the opposing and requesting companies were not made in due time (ca. 15 working days) or the objection form contained misleading or inaccurate information. ...’ 7 Annex IV to the [OSCURATO:PERSONA]’s communication consists of a form which must be completed in order to object to an application for tariff suspension. Part II of that form requires the objector’s production capacity to be indicated. Background to the dispute 8 [OSCURATO:PERSONA] summarised the background to the case, in paragraphs 1 to 8 and 11 of the judgment under appeal, as follows: ‘1      The applicant ... is a company which manufactures and sells additives for engine oil, fuel and other industrial uses. 2      On 30 January and 9 February 2012, the applicant filed three requests for suspension of the autonomous customs duties applied by the [OSCURATO:PERSONA] covering a range of products which it was importing from companies connected with it and registered in the [OSCURATO:PERSONA]. One of the suspension applications was filed with the competent authorities of the [OSCURATO:PERSONA] of Belgium and the other two were filed with those of the [OSCURATO:PERSONA]. 3      [OSCURATO:PERSONA] of Belgium and the [OSCURATO:PERSONA] submitted the suspension requests to the [OSCURATO:PERSONA] (‘the ETQG’), whose task is to support the [OSCURATO:PERSONA] in the examination of requests for suspension of customs duties or tariff quota volumes, in accordance with paragraph 4.1.5 of the [[OSCURATO:PERSONA] from the [OSCURATO:PERSONA]]. 4      The examination of the suspension applications by the ETQG was concluded with the submission of a proposal for a regulation to the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] for the adoption of the proposed duty suspensions. 5      [OSCURATO:PERSONA] (EU) No 1232/2012 of 17 December 2012 amending [OSCURATO:PERSONA] (EU) No 1344/2011 suspending the autonomous [OSCURATO:PERSONA] duties on certain agricultural, fishery and industrial products (OJ 2012 L 350, p. 8) granted suspensions of customs duties for the products which were the subject of the applicant’s requests made to the competent Belgian and [OSCURATO:PERSONA] authorities and listed those products in Annex I to [OSCURATO:PERSONA] [No 1344/2011], by allocating to each of them a specific code under the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] (TARIC). ... 6      After the entry into force of [OSCURATO:PERSONA] 1232/2012, the competent Belgian and [OSCURATO:PERSONA] authorities notified the applicant that a company established in the [OSCURATO:PERSONA] (‘the objector’) had challenged the continued implementation of the suspensions granted by that regulation in respect of the products imported by the applicant. 7      In emails of 10 and 30 May 2013, the applicant indicated to the objector that the objector’s products were not comparable to those covered by the customs duties suspensions, or that if they were, they could not replace the products imported, in that, since the resulting additive packages of the objector were different from those the applicant produced, those packages would not meet the specifications of its [OSCURATO:PERSONA] customers. In addition, the applicant requested that the objector provide further information confirming, inter alia, whether the products which it manufactured could be substituted for the imported products, but it did not receive any reply from the objector. 8      By emails of 4 and 5 July and 16 August 2013, the objector replied to the applicant with clarifications concerning the three products presented as comparable to the products covered by the suspensions of customs duties under [OSCURATO:PERSONA] 1232/2012. ... 11      The ETQG met on 12 and 13 July 2013, and, although no other meeting was arranged, discussions nevertheless continued to take place. On 3 September 2013, the [OSCURATO:PERSONA] then decided not to reject the objections raised by the objector. Consequently, the [OSCURATO:PERSONA] adopted the [contested] regulation. [OSCURATO:PERSONA] 1 of the regulation at issue provides that the autonomous [OSCURATO:PERSONA] duties for the agricultural and industrial products listed in Annex I to that regulation are suspended and [OSCURATO:PERSONA] 4 provides that [OSCURATO:PERSONA] 1344/2011 is repealed ... It follows that the suspensions of customs duties covering the products imported by the applicant were repealed, with effect from 1 January 2014.’ The procedure before the [OSCURATO:PERSONA] and the judgment under appeal 9 By application lodged at the [OSCURATO:PERSONA] on 21 March 2014, the appellant brought an action for annulment of Articles 1 and 4 of the regulation at issue. 10 By separate document lodged at the [OSCURATO:PERSONA] on 27 May 2014, the [OSCURATO:PERSONA] raised an objection of inadmissibility on the ground that the appellant was not entitled to bring an action for annulment on the basis of [OSCURATO:PERSONA] 263 TFEU. 11 By document lodged at the [OSCURATO:PERSONA] on 20 June 2014, the [OSCURATO:PERSONA] applied for leave to intervene in support of the form of order sought by the [OSCURATO:PERSONA]. 12 By order of 15 September 2014 of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA], the proceedings were stayed pending the decision of the [OSCURATO:PERSONA] of Justice in the case which has since given rise to the order of 14 July 2015, [OSCURATO:PERSONA] v [OSCURATO:PERSONA] (C‑84/14 P, not published, EU:C:2015:517). 13 By order of the [OSCURATO:PERSONA] of 14 December 2015, the objection of inadmissibility was joined to the substance of the case and costs were reserved. 14 After stating, in paragraph 33 of the judgment under appeal, that, for the sake of economy of procedure, [OSCURATO:PERSONA]’s claim for annulment should be considered as a whole, the [OSCURATO:PERSONA] examined the two pleas put forward, namely the first, alleging manifest error of assessment by the [OSCURATO:PERSONA] in deciding to terminate the suspensions at issue and the second, alleging breach of essential procedural requirements and safeguards in adopting the regulation at issue. 15 As regards the first plea, the [OSCURATO:PERSONA] first of all noted, in paragraph 58 of the judgment under appeal, that the [OSCURATO:PERSONA] had a broad discretion with regard to the adoption of suspension measures, so that the EU judicature’s judicial review of such decisions must be confined to verifying whether the procedural rules and the duty to state reasons have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error of assessment or a misuse of powers. 16 After holding, in paragraphs 62 to 64 of the judgment under appeal, that the regulation at issue had been adopted in accordance with the procedure required by the [OSCURATO:PERSONA]’s communication, the [OSCURATO:PERSONA] went on to reject the appellant’s arguments in support of its first plea. 17 In paragraph 66 of the judgment under appeal, the [OSCURATO:PERSONA] recognised that while the objector’s reply concerning its production capacity might lead to confusion, the fact remained that, in essence, it had simply stated that it was able to provide goods similar to those required for the production of the appellant’s products and that it was not the only undertaking in that regard. 18 Next, in paragraph 67 of the judgment under appeal, the [OSCURATO:PERSONA] found that the [OSCURATO:PERSONA] had the information necessary for the purposes of examining the objection raised by the objector, so that it concluded, in paragraph 68 of that judgment, that the [OSCURATO:PERSONA] had not committed a manifest error in its assessment of the identity, the equivalence or the substitutability of the products in question. 19 Finally, the [OSCURATO:PERSONA] rejected the appellant’s other arguments in paragraphs 70 to 86 of the contested judgment. 20 It thus took the view that the information contained in the form accompanying the objection showed clearly that the products in question were regarded by the objector as being substitutable. 21 Similarly, the [OSCURATO:PERSONA] found that the appellant had not provided sufficient relevant information to support its assertion that the imported products constituted unique products which were not substitutable. 22 Furthermore, the [OSCURATO:PERSONA] pointed out, in paragraph 78 of the judgment under appeal, that the assessment of the criteria used for the purposes of examining the identity, the equivalence or the substitutability of the products in question is guided, according to the [OSCURATO:PERSONA]’s communication, by the general interest of the [OSCURATO:PERSONA] and by that of economic operators, so that any technical and economic disadvantages as a result of the use of a substitute alone cannot be decisive. 23 Regarding the examination of the criteria laid down in the [OSCURATO:PERSONA]’s communication, the [OSCURATO:PERSONA] stated that there was no hierarchy between them, so that the [OSCURATO:PERSONA] had to take into account not only the technical criteria of the products in question but also those linked to their function and commercial use. 24 As regards the second plea alleging a wrongful application of the procedures, the [OSCURATO:PERSONA] found that the time limit laid down in paragraph 4.5.3 of the [OSCURATO:PERSONA]’s communication concerned the first contact between the objector and the appellant. Therefore, it rejected the appellant’s objections relating to the answers submitted by the objector after the expiry of the above time limit and dismissed the action in its entirety. Forms of order sought by the parties to the appeal 25 The appellant claims that the [OSCURATO:PERSONA] should: –        set aside the judgment under appeal; –        partially annul the regulation at issue; and –        order the [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] to pay the costs. 26 [OSCURATO:PERSONA] contends that the [OSCURATO:PERSONA] should: –        dismiss the appeal; and –        order the appellant to pay the costs. The appeal 27 In support of its appeal, the appellant submits three grounds of appeal alleging, respectively, incorrect application of the criteria laid down in the [OSCURATO:PERSONA]’s communication, distortion of the evidence, and failure to comply with requirements relating to the objection procedure as laid down in that communication. The first ground of appeal Arguments of the parties 28 The first ground of appeal is divided into three parts. 29 First, the appellant states that the [OSCURATO:PERSONA] confined itself to a purely formal analysis of the documents and information provided by the objector during the objection procedure. In so doing, it was unable to draw the appropriate inferences from the objector’s assertion that it was not able to supply the product it produces in sufficient quantities to meet the appellant’s requirements. 30 In particular, the [OSCURATO:PERSONA] wrongly held, in paragraph 66 of the judgment under appeal, that the fact that the objector had expressed its inability to supply the product it manufactures in sufficient quantities to meet the appellant’s requirements was irrelevant. [OSCURATO:PERSONA] relied on erroneous information, which was, in any event, submitted late, and also distorted the evidence. 31 Second, the [OSCURATO:PERSONA] did not take into account the arguments put forward by the appellant in the objection procedure as to the insufficient substitutability of the products in question, in particular in view of the differences highlighted as regards their chemical properties. 32 Third, the [OSCURATO:PERSONA] failed to censure the regulation at issue on the ground that the examination of the substitutability of the products in question had been conducted by favouring the assessment criteria relating to their function and commercial use, to the detriment of the technical and scientific criteria, which, however, showed the difference between those products. 33 In any event, the [OSCURATO:PERSONA]’s assessment of the interchangeability of the products in question, which led to the adoption of the regulation at issue, was examined by the [OSCURATO:PERSONA] on the basis of incorrect criteria. In that regard, if it had applied technical criteria, the [OSCURATO:PERSONA] would have had to substitute its own assessment for that of the [OSCURATO:PERSONA]. 34 [OSCURATO:PERSONA] submits that the appellant’s first ground of appeal is inadmissible in so far as it merely requests a new assessment of the facts at the appeal stage. 35 [OSCURATO:PERSONA] pleads, principally, the inadmissibility of the ground of appeal and, in the alternative, that that ground of appeal is unfounded; in particular, the [OSCURATO:PERSONA] merely applied the case-law principles as to judicial review of the [OSCURATO:PERSONA]’s assessments in relation to the suspension of tariff duties, observing the requirements of the [OSCURATO:PERSONA]’s communication. Findings of the [OSCURATO:PERSONA] 36 It must be pointed out, at the outset, that the [OSCURATO:PERSONA] correctly noted, in paragraphs 58 to 61 of the judgment under appeal, the limits to review of [OSCURATO:PERSONA] decisions which the [OSCURATO:PERSONA] is required to carry out in the context of the adoption of measures suspending tariff duties. 37 Thus, it is common ground that, as the [OSCURATO:PERSONA] enjoys a broad discretion in that context, the EU judicature’s review of the [OSCURATO:PERSONA]’s decisions must be confined to verifying whether the procedural rules and the duty to state reasons have been complied with, whether the facts have been accurately stated, and whether there has been a manifest error of assessment or a misuse of powers. 38 As regards the first part of the first ground of appeal, by which the appellant alleges that the [OSCURATO:PERSONA] did not carry out a thorough analysis of the [OSCURATO:PERSONA]’s assessments and merely conducted a purely formal examination of the procedure, it should be noted, first, that, having regard to the extent of the judicial review, as noted in the preceding paragraph of this judgment, which the [OSCURATO:PERSONA] is to conduct, it is certainly not for the [OSCURATO:PERSONA] to substitute its own assessment of complex facts at issue, concerning applications for suspension of tariff duties, for that of the [OSCURATO:PERSONA], since its review must be confined to that of manifest error of assessment. 39 Second, in so far as the appellant alleges that the [OSCURATO:PERSONA] failed to examine the evidence relied on by the [OSCURATO:PERSONA], the [OSCURATO:PERSONA] correctly pointed out, in paragraph 59 of the judgment under appeal, that, in order to establish that an institution committed a manifest error in assessing complex facts so as to justify the annulment of the measure which it adopted, the evidence in support of such a claim must be sufficient to render the factual assessments adopted in that measure implausible. 40 In that regard, first, it must be observed that, in alleging that the [OSCURATO:PERSONA] did not take into consideration the fact that the objector had stated that it was not able to supply the replacement product in sufficient quantities, the appellant misreads the judgment under appeal. 41 In paragraph 66 of that judgment, the [OSCURATO:PERSONA] held that the objector had never altered its statement concerning its production capacity; the objector had merely added a nuance to the terms used by the appellant in its comments on the objector’s objection. 42 Second, as regards the alleged confusion between the terms ‘production capacity’ and availability in ‘sufficient quantities’, while it is true that the wording of paragraph 3.2 of the [OSCURATO:PERSONA]’s communication uses the latter expression, the [OSCURATO:PERSONA] cannot be criticised for inferring from the objector’s information relating to its production capacity, as it emerges from the objection form, that the substitute product was manufactured in sufficient quantities within the [OSCURATO:PERSONA]. 43 The taking into account of the production capacity of a company objecting to a tariff suspension measure, which must be stated in the objection form, cannot constitute an error of law as regards the assessment of the availability of a substitute product in sufficient quantities. 44 In any event, it must be held, first, that the appellant merely puts forward an understanding of the information given by the objector in the objection form as to the availability of the product manufactured by the latter that differs from the [OSCURATO:PERSONA] understanding, and, second, that the appellant is asking for a new assessment of the facts by the [OSCURATO:PERSONA] of Justice at the appeal stage. 45 In that regard, the [OSCURATO:PERSONA] assessment of the facts of the case before it does not constitute a point of law falling within the scope of the [OSCURATO:PERSONA] power of review, unless the [OSCURATO:PERSONA] findings are vitiated by a substantive error or a distortion which is manifest from the documents in the file (judgment of 11 January 2017, Typke v [OSCURATO:PERSONA] , C‑491/15 P, EU:C:2017:5, paragraph 58). 46 In addition, the appeal must indicate precisely the contested elements of the judgment which the appellant seeks to have set aside and the legal arguments specifically advanced in support thereof. A ground of appeal does not meet those requirements where it does not contain any legal argument to demonstrate the manner in which the [OSCURATO:PERSONA] allegedly erred in law, and merely constitutes a request for re-examination of the action brought at first instance, in breach of the rules imposed by both the Statute of the [OSCURATO:PERSONA] of Justice and its Rules of Procedure (order of 1 February 2017, Šumelj and Others v [OSCURATO:PERSONA] , C‑239/16 P, EU:C:2017:91, paragraph 24). 47 The appellant has failed to show that the [OSCURATO:PERSONA] findings are vitiated by a manifest distortion of the documents which were submitted to it, as it merely claims, in essence, that the [OSCURATO:PERSONA] assessment of the facts is not in line with its interests. 48 As regards the second part of the first ground of appeal, by which the appellant complains that the [OSCURATO:PERSONA] did not attribute sufficient weight to the comments it had addressed to the objector in the objection procedure regarding differences between the products in question, it must be pointed out that, in paragraph 73 of the judgment under appeal, the [OSCURATO:PERSONA] found that the appellant had failed to provide evidence to support its allegation. Such a finding is all the more compelling in the light of the appellant’s pleadings, since, at the appeal stage, it was for the appellant to prove that the [OSCURATO:PERSONA] distorted the facts submitted to it. 49 In addition, it was in light of the lack of evidence to the contrary that the [OSCURATO:PERSONA] held that the appellant’s argument, namely that none of the objector’s products could be regarded as identical, equivalent or substitutable to the appellant’s products benefiting from the suspensions at issue, could not lead to an assessment different from that made by the [OSCURATO:PERSONA]. 50 As regards, lastly, the third part of the first ground of appeal, by which the appellant complains that the [OSCURATO:PERSONA] favoured, in its review of the [OSCURATO:PERSONA]’s assessment of the substitutability of the products in question, the criteria relating to the function and commercial use of those products, to the detriment of the technical criteria, the [OSCURATO:PERSONA] rightly held, in paragraph 83 of the judgment under appeal, that such an assessment must be an overall assessment, since it did not appear to follow from paragraph 3.4 of the [OSCURATO:PERSONA]’s communication that that provision establishes a hierarchy between the objective criteria which it lays down. 51 In any event, the [OSCURATO:PERSONA] recalled in paragraphs 64 and 85 of the judgment under appeal that the ETQG had carried out an examination of the essential chemical, physical and technical characteristics of the products in question, before concluding that the products were identical, similar or substitutable products. 52 Consequently, and since, as is clear from paragraphs 37 and 38 of the present judgment, the [OSCURATO:PERSONA] confined its review to that of a manifest error of assessment, it cannot be criticised for having endorsed the findings of the ETQG which took into account all the criteria set out in paragraph 3.4 of the [OSCURATO:PERSONA]’s communication. 53 Since the appellant has failed to show that the [OSCURATO:PERSONA] committed an error of law, the first ground of appeal must be rejected as unfounded. The second ground of appeal Arguments of the parties 54 By its second ground of appeal, the appellant claims, first, that the [OSCURATO:PERSONA] substituted its own assessment of the identical, comparable or substitutable nature of the products at issue for that of the [OSCURATO:PERSONA]. 55 Second, the [OSCURATO:PERSONA] distorted the evidence by not finding that the objector had recognised its inability to provide the product it manufactures in the required quantity. 56 [OSCURATO:PERSONA] pleads the inadmissibility of the second ground of appeal on the ground that the appellant has not put forward any plea in law in support of its claims. 57 [OSCURATO:PERSONA] pleads, primarily, that the second ground of appeal is inadmissible and in any case, unfounded. Findings of the [OSCURATO:PERSONA] 58 It must be pointed out that, in paragraphs 71 and 72 of the judgment under appeal, the [OSCURATO:PERSONA] held, in the light of the evidence available to it, that the objector had not expressed its inability to provide the product manufactured by it in the required quantity but had explained that its product was not manufactured in the [OSCURATO:PERSONA] or in Turkey. 59 The appellant does not show that the [OSCURATO:PERSONA] had a different understanding of the evidence than that of the [OSCURATO:PERSONA], since, in any event, the latter confirmed the findings of the [OSCURATO:PERSONA]. 60 Furthermore, the appellant has failed to adduce evidence to support the conclusion that, in so doing, the [OSCURATO:PERSONA] distorted the evidence. 61 Accordingly, the second ground of appeal must be rejected as unfounded. The third ground of appeal Arguments of the parties 62 By its third ground of appeal, the appellant claims that the [OSCURATO:PERSONA] infringed the principles of the [OSCURATO:PERSONA]’s communication, by stating in paragraph 98 of the judgment under appeal, that the period of 15 working days can apply only to the initiation of contact between the objector and the appellant and not to their subsequent exchanges. 63 Thus, it adopted an imprecise understanding of ‘in due time’, an erroneous interpretation of ‘first contact’, and misconstrued the objection in the exchange between the parties, confusing their rights in such a procedure. 64 [OSCURATO:PERSONA] and the [OSCURATO:PERSONA] contend that the second ground of appeal is inadmissible. 65 In the alternative, the [OSCURATO:PERSONA] considers that the ground of appeal is unfounded. Findings of the [OSCURATO:PERSONA] 66 It should be recalled that, in paragraph 4.5.3 of the [OSCURATO:PERSONA]’s communication, the contacts between the company which objects to an application for tariff suspension and the company which submits it, must take place in due time, namely, approximately 15 working days, otherwise the [OSCURATO:PERSONA] may reject the objection. 67 Thus, it follows from the very wording of that provision that the period of 15 days is approximate and non-binding as regards the [OSCURATO:PERSONA]’s decision. Consequently, that period is primarily addressed to the [OSCURATO:PERSONA], as it has the discretion to reject an objection if the latter has not been communicated within that period. 68 It is not apparent, however, from the wording of that provision of paragraph 4.5.3 of the [OSCURATO:PERSONA]’s communication that the period of 15 days concerns all contacts between the company objecting to an application for suspension of autonomous duties and the company which submits that application. On the contrary, the exchanges must make it possible for the [OSCURATO:PERSONA] to have at its disposal the most comprehensive information possible concerning the identical, comparable or substitutable nature of the product on which the objection is based. An overly restrictive limitation of the period during which such exchanges must take place might lead the [OSCURATO:PERSONA] to adopt a decision on the objection without the relevant information for that purpose. 69 Accordingly, the second ground of appeal must be rejected as unfounded. 70 In view of all the foregoing considerations, the appeal must be dismissed in its entirety. Costs 71 [OSCURATO:PERSONA] 184(2) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, where the appeal is unfounded or where the appeal is well founded and the [OSCURATO:PERSONA] itself gives final judgment in the case, the [OSCURATO:PERSONA] is to make a decision as to costs. 72 [OSCURATO:PERSONA] 138(1) of those Rules, applicable 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 [OSCURATO:PERSONA] has applied for costs against the appellant and the latter has been unsuccessful, it must be ordered to pay, in addition to its own costs, those incurred by the [OSCURATO:PERSONA] in the context of the present appeal. 73 Pursuant to [OSCURATO:PERSONA] 140 of those Rules, the [OSCURATO:PERSONA] is to bear its own costs. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby: 1. Dismisses the appeal; 2. [OSCURATO:SOCIETA] to bear its own costs and to pay those incurred by the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA]; 3. [OSCURATO:PERSONA] the [OSCURATO:PERSONA] to bear its own costs. [OSCURATO:PERSONA] in open court in Luxembourg on 14 June 2018. A. [OSCURATO:PERSONA] E. [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] * Language of the case: English.
Sentenza Corte di giustizia UE n. 1344/2018 — Fons Iuris — Fons Iuris