22 April 2021 (*1)

(Appeal – Customs union – Regulation (EU) No 952/2013 – Article 211(6) – Authorisation for inward processing of certain grain-oriented electrical steel products – Risk of adverse effect on the essential interests of EU producers – Examination of the economic conditions – Implementing Regulation (EU) 2015/2447 – Article 259 – European Commission’s conclusion on the economic conditions – Article 263 TFEU – Act not open to challenge)

In Case C‑572/18 P,

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 13 September 2018,

thyssenkrupp Electrical Steel GmbH, established in Gelsenkirchen (Germany),

thyssenkrupp Electrical Steel Ugo, established in Isbergues (France),

represented by M. Günes and L. Heinisch, Rechtsanwälte,

appellants,

the other party to the proceedings being:

European Commission, represented by J.-F. Brakeland and F. Clotuche-Duvieusart, acting as Agents,

defendant at first instance,

THE COURT (Fourth Chamber),

composed of M. Vilaras, President of the Chamber, N. Piçarra (Rapporteur), D. Šváby, S. Rodin and K. Jürimäe, Judges,

Advocate General: G. Hogan,

Registrar: A. Calot Escobar,

having regard to the written procedure,

after hearing the Opinion of the Advocate General at the sitting on 26 November 2020,

gives the following

By their appeal, thyssenkrupp Electrical Steel GmbH and thyssenkrupp Electrical Steel Ugo request the Court of Justice to set aside the order of the General Court of the European Union of 2 July 2018, thyssenkrupp Electrical Steel and thyssenkrupp Electrical Steel Ugo v Commission (T‑577/17, not published, EU:T:2018:411) (‘the order under appeal’), by which the General Court dismissed their action seeking annulment of the European Commission’s conclusion contained in the minutes of the sixth meeting of the Customs Expert Group Section ‘Special Procedures other than transit’ of 2 May 2017 to the effect that the essential interests of European Union producers would not be adversely affected by an authorisation for inward processing of certain grain-oriented electrical steel products requested by Euro-Mit Staal BV (‘EMS’).

Legal context

European Union law

Regulation No 2913/92

Articles 130 to 136 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Regulation (EC) No 2700/2000 of the European Parliament and of the Council of 16 November 2000 (OJ 2000 L 311, p. 17) (‘Regulation No 2913/92’), concerned the procedure for processing under customs control.

Article 130 of Regulation No 2913/92 provided:

‘The procedure for processing under customs control shall allow non-Community goods to be used in the customs territory of the Community in operations which alter their nature or state, without their being subject to import duties or commercial policy measures, and shall allow the products resulting from such operations to be released for free circulation at the rate of import duty appropriate to them. Such products shall be termed processed products.’

According to Article 132 of that regulation:

‘Authorisation for processing under customs control shall be granted at the request of the person who carries out the processing or arranges for it to be carried out.’

Article 133 of that regulation provided:

‘Authorisation shall be granted only:

…

(e) where the necessary conditions for the procedure to help create or maintain a processing activity in the Community without adversely affecting the essential interests of Community producers of similar goods (economic conditions) are fulfilled. The cases in which the economic conditions are deemed to have been fulfilled may be determined in accordance with the committee procedure.’

In accordance with Articles 247 to 249 of that regulation, the Commission was assisted by a committee.

Regulation No 2913/92 was repealed and replaced by Regulation (EC) No 450/2008 of the European Parliament and of the Council of 23 April 2008 laying down the Community Customs Code (Modernised Customs Code) (OJ 2008 L 145, p. 1), which was itself repealed and replaced by Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code (OJ 2013 L 269, p. 1) (‘the Customs Code’).

Regulation No 2454/93

Article 502(1) of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92 (OJ 1993 L 253, p. 1), as amended by Commission Regulation (EC) No 993/2001 of 4 May 2001 (OJ 2001 L 141, p. 1) (‘Regulation No 2454/93’) provided:

‘Except where the economic conditions are deemed to be fulfilled pursuant to Chapters 3, 4 or 6, the authorisation [for processing under customs control] shall not be granted without examination of the economic conditions by the customs authorities.’

Article 503 of that regulation provided:

‘An examination of the economic conditions involving the Commission may take place:

(a) if the customs authorities concerned wish to consult before or after issuing an authorisation;

(b) if another customs administration objects to an authorisation issued;

(c) on the initiative of the Commission.’

10.10

Under Article 504(1) and (4) of that regulation:

‘1. Where an examination in accordance with Article 503 is initiated, the case shall be sent to the Commission. It shall contain the results of the examination already undertaken.

…

Regulation No 2454/93 was repealed by Commission Implementing Regulation (EU) 2016/481 of 1 April 2016 (OJ 2016 L 87, p. 24).

The Customs Code

12.12

Article 5 of the Customs Code, entitled ‘Definitions’, states in point 39 thereof that the concept of ‘decision’, for the purposes of that code, is to be understood as referring to ‘any act by the customs authorities pertaining to the customs legislation giving a ruling on a particular case, and having legal effects on the person or persons concerned’.

Article 22 of that code, entitled ‘Decisions taken upon application’, provides:

‘1. Where a person applies for a decision relating to the application of the customs legislation, that person shall supply all the information required by the competent customs authorities in order to enable them to take that decision.

…

Where the customs authorities establish that the application contains all the information required in order for them to be able to take the decision, they shall communicate its acceptance to the applicant within the period specified in the first subparagraph.

…

…

14.14

Article 44 of that code, entitled ‘Right of appeal’, states in paragraphs 1 and 3 thereof:

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

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

…

Article 211 of that code provides:

‘1. An authorisation from the customs authorities shall be required for the following:

(a) the use of the inward … processing procedure …

…

(a) the customs authorities are able to exercise customs supervision without having to introduce administrative arrangements disproportionate to the economic needs involved;

(b) the essential interests of Union producers would not be adversely affected by an authorisation for a processing procedure (economic conditions).

16.16

The first paragraph of Article 213 of the Customs Code, entitled ‘Conferral of implementing powers’, provides:

‘The Commission shall specify, by means of implementing acts, the procedural rules for examining the economic conditions referred to in Article 211(6).’

17.17

Article 166(1) of Commission Delegated Regulation (EU) 2015/2446 of 28 July 2015 supplementing Regulation No 952/2013 as regards detailed rules concerning certain provisions of the Union Customs Code (OJ 2015 L 343, p. 1) (‘the delegated regulation’) sets out the general rule that the condition laid down in Article 211(4)(b) of the Customs Code is not to apply to authorisations for inward processing, while providing for three exceptions to that rule.

Article 259 of Commission Implementing Regulation (EU) 2015/2447 of 24 November 2015 laying down detailed rules for implementing certain provisions of Regulation No 952/2013 (OJ 2015 L 343, p. 558) (‘the implementing regulation’), entitled ‘Examination of the economic conditions’, is worded as follows:

‘1. Where following an application for an authorisation as referred to in Article 211(1)(a) of the [Customs Code] an examination of the economic conditions is required in accordance with Article 211(6) of [that] Code, the customs administration of the customs authority competent for taking a decision on the application shall transmit the file to the Commission without delay requesting such examination.

…

It may be specified in the conclusions reached on the economic conditions that the case under examination is unique and therefore cannot serve as a precedent for other applications or authorisations.

…’

19.19

Decision C(2016) 3301 final