7 December 2022(*)

(Action for annulment – Customs union – Common Customs Tariff – Tariff and statistical nomenclature – Classification in the Combined Nomenclature – Tariff heading – Regulatory act entailing implementing measures – Lack of individual concern – Inadmissibility)

In Case T‑721/21,

Sunrise Medical BV,

Sunrise Medical Logistics BV,

represented by L. Ruessmann and J. Beck, lawyers,

applicants,

European Commission,

represented by J. Hradil and M. Salyková, acting as Agents,

defendant,

THE GENERAL COURT (First Chamber),

composed of D. Spielmann, President, V. Valančius and I. Gâlea (Rapporteur), Judges,

Registrar: E. Coulon,

having regard to the written part of the procedure, inter alia:

–the objection of inadmissibility raised by the Commission by document lodged at the Court Registry on 24 January 2022,

–the applicants’ observations on the objection of inadmissibility lodged at the Court Registry on 11 March 2022,

makes the following

1By their action based on Article 263 TFEU, the applicants, Sunrise Medical BV and Sunrise Medical Logistics BV, seek the annulment of Commission Implementing Regulation (EU) 2021/1367 of 6 August 2021 concerning the classification of certain goods in the Combined Nomenclature (OJ 2021 L 294, p. 1) (‘the contested regulation’).

Background to the dispute

2It should be noted at the outset that, first, for the purposes of applying the Common Customs Tariff and facilitating the establishment of statistics of the European Union’s external trade and other EU policies relating to imports and exports of goods, the Council of the European Union, by adopting Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended, established a complete nomenclature of goods being imported and exported in the European Union (‘the Combined Nomenclature’). That nomenclature is set out in Annex I to that regulation.

3Secondly, Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1, corrigendum OJ 2013 L 287, p. 90; ‘the Union Customs Code’) lays down the rules and general procedures that must be applied to goods imported to or exported from the European Union.

4The applicants, established in the Netherlands, import and sell products intended to alleviate the physical and social consequences of disability, in particular mobility difficulties. In the context of their activities, they import into the European Union, in particular, electric scooters for persons with reduced mobility (‘the product at issue’). They also market those products in the Member States.

5For several years, there have been disagreements as to the appropriate classification of the product at issue in the Combined Nomenclature, notably over the question whether it must classified under heading 8703 which covers ‘Motor cars and other motor vehicles principally designed for the transport of persons (other than those of heading No 8702), including station wagons and racing cars’, or under heading 8713 which includes ‘Carriages for disabled persons, whether or not motorised or otherwise mechanically propelled’. In that context, differing judgments of 22 December 2010, Lecson Elektromobile (C‑12/10, EU:C:2010:823), and of 26 May 2016, Invamed Group and Others (C‑198/15, EU:C:2016:362), have been delivered. Furthermore, the Commission adopted Regulation (EC) No 718/2009 of 4 August 2009 concerning the classification of certain goods in the Combined Nomenclature (OJ 2009 L 205, p. 7).

6As those disagreements persisted, on 6 August 2021, pursuant to Article 57(4) and Article 58(2) of the Union Customs Code, the European Commission adopted the contested regulation. The annex to the contested regulation consists of a table divided into three columns. Column 1 of the table reproduces the description of the goods in question, column 2, the classification in the Combined Nomenclature and, column 3, the grounds. Under that table ‘purely for information’ there is a photograph of the goods concerned. The classification of those goods is set out as follows:

Description of the goods

Classification (CN code)

Reasons

(1)

(2)

(3)

Four-wheeled vehicle with a DC 24 V 800 W electric motor powered by two 12 V rechargeable batteries with 45Ah-capacity. It is approximately 65 cm wide, 125 cm long and 129 cm high (measured at the seat back, 85 cm with the seat back folded down). Its total weight is approximately 107 kg (108 kg including the batteries). The maximum load is approximately 130 kg.

The vehicle has the following characteristics:

-a horizontal platform connecting the front and rear sections; the platform cannot be adjusted in any way (e.g. folded or tilted) to suit the user’s needs,

-two sprung axles, rear-axle drive and an 820 mm wheelbase,

-gradient capability 13°,

-turning circle 210 cm,

-two sets of inflatable tyres (the rear tyres being larger than the front ones),

-a configurable, height-adjustable rotating seat with supports and armrests and a non-slip surface for the feet,

-an adjustable fold-down steering column with oval-shaped handlebars,

-front and rear lights, direction indicators and rear-view mirrors.

The steering column also has a dashboard featuring a switch box, a speed control, a horn button, an engine-idle button, a blinker switch, a light switch, a battery-status indicator and a speed adjuster.

The vehicle has two manually operated levers for accelerating, braking and reversing. The steering can be adjusted to allow operation with one hand.

It has a ‘smart’ regenerative electromagnetic braking system.

With fully charged batteries, the vehicle has a maximum range of up to 45 kilometres and can reach a maximum speed of approximately 15-16 km/h.

It may be fitted with small anti-tipping wheels at the back, a shopping basket, a walking-stick holder, etc.

The vehicle may be stowed for transport purposes. It may be used on roads, pavements, footpaths, pathways in parks, cycle paths and certain leisure trails, or in pedestrian areas (e.g. shopping precincts).

8703 10 18

Classification is determined by General Rules 1 and 6 for the interpretation of the Combined Nomenclature and by the wording of CN codes 8703, 8703 10 and 8703 10 18.

Classification under heading 8713 as a carriage for disabled persons is excluded as the vehicle is not specially designed for the transport of disabled persons: it has no special features to alleviate a disability.

Although the vehicle is designed so that the steering can be controlled with one hand and features a comfortable rotating seat with supports and a non-slip surface for the feet (and may optionally be fitted with small anti-tipping wheels), such characteristics do not objectively constitute special features designed to alleviate a disability (see also the Combined Nomenclature Explanatory Notes (CNEN) to subheading 8713 90 00, the Harmonised System Explanatory Notes to heading 8713 and HS classification opinion 8703.10/1).

In addition, vehicles fitted with a separate, adjustable steering column and those reaching a maximum speed over 10 km per hour are excluded from heading 8713 (see also the explanatory notes to the combined nomenclature concerning subheading 8713 90 00).

The vehicle is used for transporting persons and upon presentation to customs authorities it is not recognisable as a vehicle designed solely for disabled persons (see Case C‑198/15), based on its objective characteristics and properties which must be assessed at the time of customs clearance (see Case C‑286/15). Any subsequent post-clearance modification of the vehicle is disregarded as is any assessment of the vehicle that may be carried out by a national authority for purposes other than those laid down in customs legislation.

The vehicle is a special type of vehicle for the transport of persons.

It is therefore to be classified under CN code 8703 10 18 as a motor vehicle principally designed for the transport of persons, similar to golf cars.

In accordance with Article 3 therein, the contested regulation entered into force twenty days after its publication in the Official Journal of the European Union, namely on 17 August 2021.

Forms of order sought

The applicants claim that the Court should:

–annul the contested regulation;

–order the Commission to pay the costs.

In its objection of inadmissibility under Article 130 of the Rules of Procedure of the General Court, the Commission contends that the Court should:

–dismiss the application as inadmissible;

–order the applicants to pay the costs.

In their observations on the objection of inadmissibility, the applicants claim that the Court should declare the action admissible.

Law

Under Article 130(1) and (7) of the Rules of Procedure, on the application of the defendant the Court may decide on inadmissibility or lack of competence without going to the substance of the case.

In this case, as the Commission has applied for a decision on inadmissibility, the Court, which considers that it has sufficient information available to it from the material in the file, has decided to rule on that application without taking further steps in the proceedings.

In support of its objection of inadmissibility, the Commission raises two pleas of inadmissibility, alleging, first, that the contested regulation produces its effects in respect of the applicants only through implementing measures, within the meaning of the fourth paragraph of Article 263 TFEU and, secondly, that the regulation is not of individual concern to the applicants.

The applicants dispute the Commission’s argument as to the first plea for inadmissibility and submit that the contested regulation does not entail implementing measures for them. In addition, they point out that they did not claim that the contested regulation was of individual concern to them. In that respect, they accept that the case-law is well-established and do not intend to submit observations on that to the General Court.

Under the fourth paragraph of Article 263 TFEU, any natural or legal person may, under the conditions laid down in the first and second paragraphs of that article, institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures.

In the first place, it must be observed that the applicants, as they acknowledge, are not addressees of the contested regulation. In those circumstances, pursuant to the fourth paragraph of Article 263 TFEU, they may bring an action for annulment of that regulation only in two situations, namely, first, if they are directly and individually concerned by it or, secondly, if the regulation is a regulatory act which is of direct concern to them and which does not entail implementing measures.

In the second place, it should be noted that, as the Commission admits, the contested regulation is a regulatory act within the meaning of Article 263 TFEU. Thus, it is of general application, in that it applies to objectively determined situations and produces legal effects concerning categories of persons envisaged in general and in the abstract. Moreover, the contested regulation does not constitute a legislative act because it was not adopted in accordance with either the ordinary legislative procedure or the special legislative procedure within the meaning of paragraphs 1 to 3 of Article 289 TFEU (judgment of 12 September 2013, Palirria Souliotis v Commission, T‑380/11, not published, EU:T:2013:420, paragraph 27). It is, rather, a Commission act adopted in the exercise of its implementing powers, on the basis of Article 57(4) and Article 58(2) of the Union Customs Code.

42v Commission, C‑274/12 P, EU:C:2013:852, paragraph 31, and order of 14 July 2015, Forgital Italy v Council, C‑84/14 P, not published, EU:C:2015:517, paragraph 52).

43In the present case, it suffices to note that the present action seeks the annulment of the contested regulation in its entirety. Furthermore, as is clear from paragraph 22 above, the customs system of which the contested regulation forms part provides that the receipt of duties fixed by the Combined Nomenclature is carried out, in all cases, on the basis of measures adopted by the national authorities.

44In addition, as regards the applicants’ argument alleging a breach of the European Union’s international obligations under the United Nations Convention on the Rights of Persons with Disabilities, it must be observed that that relates exclusively to the substance of the action and that it cannot therefore call into question the conditions for admissibility of an action for annulment (see, by analogy, order of 3 July 2007, Commune de Champagne and Others v Council and Commission, T‑212/02, EU:T:2007:194, paragraph 217). Therefore, it must be rejected.

45Lastly, in the light of the considerations set out in paragraphs 25 to 43 above, it must be held that the applicants’ argument that there are factual differences distinguishing this case from that which gave rise to the order of 19 July 2017, Pfizer and Pfizer santé familiale v Commission (T‑716/16, not published, EU:T:2017:526), is unfounded. It is not possible to identify any difference between those cases capable of calling into question the existence of implementing measures, within the meaning of the fourth paragraph of Article 263 TFEU in this case.

46It follows from the foregoing that the contested regulation entails implementing measures notwithstanding their automatic nature.

47In that respect, having regard to the automatic nature of the implementing measures that the contested regulation entails, it must be held that the applicants are directly concerned by that regulation. The contested regulation directly affects their legal situation and leaves no discretion to the addressees of that measure who are entrusted with the task of implementing it, that implementation being purely automatic and resulting from EU rules without the application of other intermediate rules (see, to that effect, order of 10 June 2020, Golden Omega v Commission, T‑846/19, not published, EU:T:2020:248, paragraph 25 and the case-law cited). Moreover, the direct concern of the applicants is not contested by the parties.

48Consequently, the applicants have standing to bring proceedings against the contested regulation only if they are individually concerned by it, within the meaning of the fourth paragraph of Article 263 TFEU.

Whether there is an absence of individual concern to the applicants

49The Commission contends that the applicants are not individually concerned by the contested regulation. According to the Commission, they are affected by that regulation only in their objective capacity as importers of goods in the same way as any other economic operator actually or potentially in the same situation. The contested regulation does not affect the applicants because of certain attributes which are peculiar to them or circumstances which differentiate them from all other persons.

50It should be noted that the applicants do not assert that they are individually concerned by the contested regulation. As has been noted in paragraph 14 above, they accept that the contested regulation does not affect them individually and do not make submissions to the General Court in that respect.

51In any event, it should be pointed out that Article 1 of the contested regulation, the purpose of which is to classify within the Combined Nomenclature the goods described in column 1 of the table set out in the annex to that regulation, under the corresponding code indicated in column 2 of that table, namely subheading 8703 10 18, is a measure of general application that applies to an objectively determined situation and produces legal effects with respect to categories of persons envisaged generally and in the abstract, and in particular economic operators engaged in customs activities relating to such goods.

52However, even a measure of general application may, in certain circumstances, be of individual concern to some economic operators. That is the case where the measure at issue affects them by reason of certain attributes peculiar to them or by reason of a factual situation which differentiates them from all other persons and thereby distinguishes them individually in the same way as an addressee (see order of 10 June 2020, Golden Omega v Commission, T‑846/19, not published, EU:T:2020:248, paragraph 48 and the case-law cited).

53In that regard, the sole fact that a measure of general application may have practical effects which differ as between the various persons to whom it applies is not such as to differentiate them from all the other operators concerned, where that measure is applied on the basis of an objectively determined situation (see order of 10 June 2020, Golden Omega v Commission, T‑846/19, not published, EU:T:2020:248, paragraph 49 and the case-law cited).

54In addition, according to settled case-law, the possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them as long as that measure is applied by virtue of an objective legal or factual situation defined by the measure in question (see order of 10 June 2020, Golden Omega v Commission, T‑846/19, not published, EU:T:2020:248, paragraph 50 and the case-law cited).

55Moreover, the fact that certain operators are economically more affected by a measure than the other operators in the same sector is not sufficient for them to be regarded as individually concerned by that measure (see order of 10 June 2020, Golden Omega v Commission, T‑846/19, not published, EU:T:2020:248, paragraph 51 and the case-law cited).

56Therefore, it must be held that the applicants are affected by the contested regulation only in their objective capacity as economic operators engaged in customs activities in respect of goods corresponding to the description of the goods set out in column 1 of the table annexed to the contested regulation, in the same way as any other operator actually or potentially in the same situation.

57It follows from all the foregoing considerations that the objection of admissibility raised by the Commission must be upheld and, therefore, the action must be dismissed as inadmissible.

Costs

58Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs, if they have been applied for in the successful party’s pleadings. As the applicants have been unsuccessful, they must be ordered to pay the costs, in accordance with the form of order sought by the Commission.

On those grounds,

hereby:

1.Dismisses the application as inadmissible.

2.Orders Sunrise Medical BV and Sunrise Medical Logistics BV to pay the costs.

Luxembourg, 7 December 2022.

Registrar

President

—

Language of the case: English.