Canon Europa v Commission (Judgment) [2015] EUECJ C-552/14 (10 December 2015)

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(Appeal — Customs Union and Common Customs Tariff — Regulation (EU) No 861/2010 — Actions for annulment — Fourth paragraph of Article 263 TFEU — Regulatory act not entailing implementing measures — Release of goods and communication of the amount of the duties — Use of simplified procedures or data-processing techniques)

APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on 1 December 2014,

Canon Europa NV, established in Amsterdam (Netherlands), represented by P. De Baere, avocat, and P. Muñiz, advogado,

composed of A. Arabadjiev, President of the Sixth Chamber, acting as President of the Seventh Chamber, C. Lycourgos (Rapporteur) and J.-C. Bonichot, Judges,

having decided, after hearing the Advocate General, to proceed to judgment without an Opinion,

1 By its appeal, Canon Europa NV (‘Canon Europa’) seeks to have set aside the order of the General Court of the European Union of 16 September 2014 in Canon Europa v Commission (T‑34/11, EU:T:2014:797; ‘the order under appeal’), by which it declared inadmissible its action seeking the annulment in part of the annex to Commission Regulation (EU) No 861/2010 of 5 October 2010 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2010 L 284, p. 1; ‘the contested regulation’).

2 The sixth and eighth recitals in the preamble to Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1), as amended by Council Regulation (EC) No 1186/2009 of 16 November 2009 (OJ 2009 L 324, p. 23; ‘the Customs Code’) state:

‘… in view of the paramount importance of external trade for the Community, customs formalities and controls should be abolished or at least kept to a minimum;

… in adopting the measures required to implement this Code, the utmost care must be taken to prevent any fraud or irregularity liable to affect adversely the General Budget of the European Communities …’.

(5) “Decision” means any official act by the customs authorities pertaining to customs rules giving a ruling on a particular case, such act having legal effects on one or more specific or identifiable persons; this term covers, inter alia, binding information within the meaning of Article 12.

(17) “Customs declaration” means the act whereby a person indicates in the prescribed form and manner a wish to place goods under the common transit procedure.

(20) “Release of goods” means the act whereby the customs authorities make goods available for the purposes stipulated by the customs procedure under which they are placed.

‘All goods intended to be placed under a customs procedure shall be covered by a declaration for that customs procedure.’

(b) using a data-processing technique where provided for by provisions laid down in accordance with the committee procedure or where authorised by the customs authorities; or

(c) by means of a normal declaration or any other act whereby the holder of the goods expresses his wish to place them under a customs procedure, where such a possibility is provided for by the rules adopted in accordance with the committee procedure.’

‘1. Declarations in writing shall be made on a form corresponding to the official specimen prescribed for that purpose. They shall be signed and contain all the particulars necessary for implementation of the provisions governing the customs procedure for which the goods are declared.

2. The declaration shall be accompanied by all the documents required for implementation of the provisions governing the customs procedure for which the goods are declared.’

‘Declarations which comply with the conditions laid down in Article 62 shall be accepted by the customs authorities immediately, provided that the goods to which they refer are presented to customs.’

‘1. The customs authorities shall, at the request of the declarant, invalidate a declaration already accepted where the declarant furnishes proof that goods were declared in error for the customs procedure covered by that declaration or that, as a result of special circumstances, the placing of the goods under the customs procedure for which they were declared is no longer justified.

Nevertheless, where the customs authorities have informed the declarant of their intention to examine the goods, a request for invalidation of the declaration shall not be accepted until after the examination has taken place.

2. The declaration shall not be invalidated after the goods have been released, expect in cases defined in accordance with the committee procedure.

3. Invalidation of the declaration shall be without prejudice to the application of the penal provisions in force.’

‘Without prejudice to Article 74, where the conditions for placing the goods under the procedure in question are fulfilled and provided the goods are not subject to any prohibitive or restrictive measures, the customs authorities shall release the goods as soon as the particulars in the declaration have been verified or accepted without verification. The same shall apply where such verification cannot be completed within a reasonable period of time and the goods are no longer required to be present for verification purposes.’

‘1. Where acceptance of a customs declaration gives rise to a customs debt, the goods covered by the declaration shall not be released unless the customs debt has been paid or secured. However, without prejudice to paragraph 2, this provision shall not apply to the temporary importation procedure with partial relief from import duties.

2. Where, pursuant to the provisions governing the customs procedure for which the goods are declared, the customs authorities require the provision of a security, the said goods shall not be released for the customs procedure in question until such security is provided.’

‘1. In order to simplify completion of formalities and procedures as far as possible while ensuring that operations are conducted in a proper manner, the customs authorities shall, under conditions laid down in accordance with the committee procedure, grant permission for:

(a) the declaration referred to in Article 62 to omit certain of the particulars referred to in paragraph 1 of that Article [or] for some of the documents referred to in paragraph 2 of that Article not to be attached thereto;

(b) a commercial or administrative document, accompanied by request for the goods to be placed under the customs procedure in question, to be lodged in place of the declaration referred to in Article 62;

(c) the goods to be entered for the procedure in question by means of an entry in the records; in this case, the customs authorities may waive the requirement that the declarant presents the goods to customs.

The simplified declaration, commercial or administrative document or entry in the records must contain at least the particulars necessary for identification of the goods. Where the goods are entered in the records, the date of such entry must be included.

2. Except in cases to be determined in accordance with the committee procedure, the declarant shall furnish a supplementary declaration which may be of a general, periodic or recapitulative nature.

3. Supplementary declarations and the simplified declarations referred to in subparagraphs 1(a), (b) and (c), shall be deemed to constitute a single, indivisible instrument taking effect on the date of acceptance of the simplified declarations; in the cases referred to in subparagraph 1(c), entry in the records shall have the same legal force as acceptance of the declaration referred to in Article 62.

4. Special simplified procedures for the Community transit procedure shall be laid down in accordance with the committee procedure.’

‘Where the customs declaration is made by means of a data-processing technique within the meaning of Article 61(b), or by an oral declaration or any other act within the meaning of Article 61(c), Articles 62 to 76 shall apply mutatis mutandis without prejudice to the principles set out therein.’

13 Under Article 78(1) of the Customs Code, in the section entitled ‘Post-clearance examination of declarations’:

‘The customs authorities may, on their own initiative or at the request of the declarant, amend the declaration after release of the goods.’

‘Each and every amount of import duty or export duty resulting from a customs debt, hereinafter called “amount of duty”, shall be calculated by the customs authorities as soon as they have the necessary particulars, and entered by those authorities in the accounting records or on any other equivalent medium (entry in the accounts).

‘1. As soon as it has been entered in the accounts, the amount of duty shall be communicated to the debtor in accordance with appropriate procedures.

2. Where the amount of duty payable has been entered, for guidance, in the customs declaration, the customs authorities may specify that it shall not be communicated in accordance with paragraph 1 unless the amount of duty indicated does not correspond to the amount determined by the authorities.

… [W]here use is made of the possibility provided for in the preceding subparagraph, release of the goods by the customs authorities shall be equivalent to communication to the debtor of the amount of duty entered in the accounts.’

16 Procedures for the repayment or remission of duties are governed by Article 236 of the Customs Code, which provides as follows:

‘1. Import duties … shall be repaid in so far as it is established that when they were paid the amount of such duties was not legally owed or that the amount has been entered in the accounts contrary to Article 220(2).

Import duties … shall be remitted in so far as it is established that when they were entered in the accounts the amount of such duties was not legally owed or that the amount has been entered in the accounts contrary to Article 220(2).

No repayment or remission shall be granted when the facts which led to the payment or entry in the accounts of an amount which was not legally owed are the result of deliberate action by the person concerned.

2. Import duties or export duties shall be repaid or remitted upon submission of an application to the appropriate customs office within a period of three years from the date on which the amount of those duties was communicated to the debtor.

That period shall be extended if the person concerned provides evidence that he was prevented from submitting his application within the said period as a result of unforeseeable circumstances or force majeure.

Where the customs authorities themselves discover within this period that one or other of the situations described in the first and second subparagraphs of paragraph 1 exists, they shall repay or remit on their own initiative.’

17 Articles 243 to 246 of the Customs Code form Title VIII thereof, entitled ‘Appeals’. Article 243 is worded as follows:

‘1. Any person shall have the right to appeal against decisions taken by the customs authorities which relate to the application of customs legislation, and which concern him directly and individually.

Any person who has applied to the customs authorities for a decision relating to the application of customs legislation and has not obtained a ruling on that request within the period referred to in Article 6(2) shall also be entitled to exercise the right of appeal.

The appeal must be lodged in the Member State where the decision has been taken or applied for.

(a) initially, before the customs authorities designated for that purpose by the Member States;

(b) subsequently, before an independent body, which may be a judicial authority or an equivalent specialised body, according to the provisions in force in the Member States.’

‘The submission of an appeal shall not cause implementation of the disputed decision to be suspended.

The customs authorities shall, however, suspend implementation of such decision in whole or in part where they have good reason to believe that the disputed decision is inconsistent with customs legislation or that irreparable damage is to be feared for the person concerned.

Where the disputed decision has the effect of causing import duties … to be charged, suspension of implementation of that decision shall be subject to the existence or lodging of a security. However, such security need not be required where such a requirement would be likely, owing to the debtor’s circumstances, to cause serious economic or social difficulties.’

‘The provisions for the implementation of the appeals procedure shall be determined by the Member States.’

‘This title shall not apply to appeals lodged with a view to the annulment or revision of a decision taken by the customs authorities on the basis of criminal law.’

21 Council 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) put in place a complete nomenclature of products imported and exported in the European Union. That combined nomenclature is in Annex I to that regulation.

22 In accordance with Article 12(1) of Regulation No 2658/87, the Commission is to adopt each year by means of a regulation a complete version of the Combined Nomenclature together with the rates of excise duty, as it results from measures adopted by the Council of the European Union or by the Commission. That regulation is to apply from 1 January of the following year.

23 Thus, the Combined Nomenclature was replaced, with effect from 1 January 2011, by that in the annex to the contested regulation (‘the CN’).

24 Subheading 8443 31 of the CN, included in Chapter 84 thereof, concerns multifunctional machines, that is to say printers, copying or facsimile machines which ‘perform two or more of the functions of printing, copying or facsimile transmission, capable of connecting to an automatic data-processing machine or to a network’ (‘MFMs’). That subheading includes the following three subdivisions:

25 Under the CN, the import of MFMs falling within code 8443 31 91 is subject to a ‘conventional duty’ the rate of which is 6%. However, MFMs falling within the two other subdivisions of subheading 8443 31 of the CN benefit from an exemption.

26 By application registered at the Registry of the General Court on 24 January 2011, Canon Europa, a company importing and distributing in the EU digital office equipment, in particular MFMs, brought an action seeking the annulment in part of the contested regulation, being of the view, inter alia, that that regulation was invalid in that it amended the rates of customs duty applicable to certain MFMs.

27 By a document registered at the Registry of the General Court on 13 April 2011, the Commission raised a plea of inadmissibility under Article 114 of the Rules of Procedure of the General Court on the ground, in essence, that the contested regulation did not directly affect Canon Europa and that, in any event, that regulation entailed implementing measures. Furthermore, Canon Europa accepted that the contested regulation was not addressed to it and that it was not individually affected by it. Accordingly, in the view of the Commission, it did not have standing to bring proceedings under the fourth paragraph of Article 263 TFEU. Canon Europa submitted its observations on that plea of inadmissibility on 8 June 2011.

28 Under Article 114(4) of the Rules of Procedure of the General Court, that Court decided to rule on the plea of inadmissibility raised by the Commission without examining the substance of the case.

29 In the order under appeal, the General Court dismissed the action as inadmissible. In paragraph 47 of that order, it held that the introduction of subdivisions in a subheading of the Combined Nomenclature such as that effected by the contested regulation was liable to produce real and definitive legal effects on the situation of importers only through the intervention of individual measures taken by the national customs authorities following submission of the customs declaration, since those measures could, depending on the case, lead to the release of the goods or the communication to the debtor of the amount of duty payable.

30 The General Court thus decided, in paragraph 55 of the order under appeal, that the contested regulation did not constitute a regulatory act which does not entail implementing measures within the meaning of the fourth paragraph of Article 263 TFEU and that since Canon Europa was not able to show that it was individually concerned by the provisions of the contested regulation which it challenged, it did not have standing to bring an action for the annulment of those provisions.

Forms of order sought by the parties and the procedure before the Court of Justice

– refer the action back to the General Court for the dispute to be decided on the merits; and

33 By order of 19 December 2011, the President of the Court of Justice decided to join Cases C‑552/14 P and C‑553/14 P for the purposes of the written procedure and the oral procedure. He granted the appellant’s application not to join the cases for the purposes of the judgment.

35 By the first ground of appeal, divided into five parts, Canon Europa argues that the General Court erred in law in its interpretation and application of Article 263 TFEU in that it concluded that the contested regulation entailed implementing measures within the meaning of that provision.

36 The first and second parts of the ground of appeal should be examined together.

37 By the first part of the first ground of appeal, Canon Europa submits that, in paragraphs 35 and 36 and 38 to 46 of the order under appeal, the General Court erred in law by imprecisely identifying or interpreting the conditions which must, in law, be satisfied by the contested regulation to entail implementing measures.

38 Canon Europa is of the opinion that the General Court was incorrect to hold that the contested regulation did not produce concrete and definitive effects with regard to it and that any obligation following from the contested regulation had to take the form of a decision concerning the tariff classification. Canon Europa submits that the tariff classification of the MFMs and the obligations which follow therefrom with regard to it are clearly provided for in the contested regulation and that accordingly it is not necessary for the measures to be taken to tailor the effects of that regulation to it. Furthermore, in the view of the appellant, implementing measures, within the meaning of Article 263 TFEU, cannot constitute optional measures. The checks carried out by the customs authorities are optional and therefore irrelevant to the examination of the admissibility of the action for annulment.

39 According to Canon Europa, the General Court’s analysis of the various stages of the import procedure is also irrelevant. In any event, the General Court erred in law by mixing the existence and the recovery of the customs debt. In that regard, Canon Europa submits that it is the acceptance of the customs declaration which crystallises the effects of the contested regulation and that, since the General Court accepted that that acceptance did not constitute an implementing measure within the meaning of Article 263 TFEU, that regulation therefore produces concrete and definitive obligations, while not entailing implementing measures.

40 By the second part of the first ground of appeal, Canon Europa argues that, in paragraphs 42 to 47 of the order under appeal, the General Court erred in law and gave contradictory and insufficient reasons for its decision when declaring that the release of the goods and the communication of the amount of the duties to be paid constituted decisions concerning the tariff classification.

41 Canon Europa submits that the General Court’s reasoning is contradictory, given that it does not give the same reasons for its decision, as regards the release of the goods, as those in paragraph 39 of the order under appeal, according to which acceptance of the customs declaration does not imply any decision. Furthermore, Canon Europa is of the view that the General Court does not explain on what basis the release of the goods constitutes a decision concerning tariff classification and, in paragraphs 41 and 43 of the order under appeal, seems only to suppose that to be the case, which equates to a failure to state reasons.

42 In addition, it follows from the first subparagraph of Article 221(2) of the Customs Code that the communication of the amount of the duties to be paid is not always made. Accordingly, if the release of the goods is the only act adopted and if it does not constitute a decision concerning tariff classification, Canon Europa argues that there is no decision concerning tariff classification for the goods in that hypothetical case. Furthermore, the mere ‘agreement’ of the customs authorities on the tariff classification, as set out in paragraph 43 of the order under appeal, cannot constitute such a decision.

43 In any event, Canon Europa submits that the General Court erred in law, given that Articles 217(1) and 221 of the Customs Code are not such as to establish that the communication of the amount of the duties to be paid contains a decision concerning the tariff classification of the goods in question.

45 It must be borne in mind that, in order to assess whether a regulatory act entails implementing measures, it should be assessed by reference to the position of the person pleading the right to bring proceedings under the final limb of the fourth paragraph of Article 263 TFEU. It is therefore irrelevant whether the act in question entails implementing measures with regard to other persons (judgments in Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 30, and T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 32).

46 In addition, in that assessment, reference should be made exclusively to the subject-matter of the action and, where an applicant seeks only the partial annulment of an act, it is solely any implementing measures which that part of the act may entail that must, as the case may be, be taken into consideration (judgment in Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 31, and order in Forgital Italy v Council, C‑84/14 P, EU:C:2015:517, paragraph 52).

47 The Court has, moreover, held that it is irrelevant to ascertaining whether or not those measures are mechanical in nature (see, to that effect, judgment in T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraphs 41 and 42).

48 In the present case, in order to determine whether the contested regulation entails implementing measures, it is necessary to ascertain whether that regulation, in particular the part of its annex concerned by the appellant’s imports, determines itself the tariff classification of the MFMs imported by Canon Europa and, accordingly, the duties applicable on their import or whether a decision of an administrative authority is needed for the purposes of that classification.

49 In that regard, in paragraphs 35 and 36 of the order under appeal, the General Court rightly held that, although the contested regulation requires Canon Europa to state, in its customs declarations, the subdivisions of subheading 8443 31 when importing MFMs, that regulation does not, however, imply either a decision as regards the tariff classification stated by Canon Europa in its customs declaration or, in consequence, a decision on the amount of customs duties which may be due.

50 The customs system, as instituted by the Customs Code and of which the contested regulation forms part, provides that the receipt of duties fixed by the latter regulation is carried out, in all cases, on the basis of measures adopted by the national authorities.

51 Clearly, therefore, Article 221(1) of the Customs Code provides that ‘[a]s soon as it has been entered in the accounts, the amount of duty shall be communicated to the debtor’. The communication allows persons liable for customs debts to have full knowledge of their rights (see, to that effect, judgment in Molenbergnatie, C‑201/04, EU:C:2006:136, paragraph 53). By communicating the amount of the duty payable, the customs authorities thus communicate their decision concerning the tariff classification stated by the debtor in its customs declaration. In addition, that communication enables the debtor, as necessary, to defend his rights (see, to that effect, judgment in Direct Parcel Distribution Belgium, C‑264/08, EU:C:2010:43, paragraph 29).

52 Accordingly, the General Court was right to hold, in paragraph 42 of the judgment under appeal, that the communication of the amount of duty contains a decision concerning the tariff classification of the goods concerned.

53 Furthermore, by holding that, under Article 221(2) of the Customs Code, the release of the goods can be equated to the communication of the amount of the duty, the General Court merely read that provision and, in so doing, gave reasons sufficient in law for its decision that the release of the goods could also constitute a decision concerning the tariff classification (see, to that effect, order in Forgital Italy v Council, C‑84/14 P, EU:C:2015:517, paragraphs 61 and 62).

54 Contrary to the appellant’s submissions, the acceptance of a customs declaration does not ‘bring into being’ the effects of the contested regulation in so far as, firstly, such an acceptance does not equate to a decision concerning the tariff classification of the goods in question and, secondly, it does not determine the duty to which the import of those goods is subject. When a customs declaration is accepted, the customs authorities do not take a decision on the accuracy of the information provided by the declarant, but merely verifies that the conditions laid down in Articles 62 and 63 of the Customs Code have been satisfied (see, to that effect, judgment in DP grup, C‑138/10, EU:C:2011:587, paragraph 39).

55 The appellant’s argument that the implementing measures, within the meaning of Article 263 TFEU, should not constitute optional measures such as the checks carried out by the customs authorities cannot succeed. It must be noted that the General Court does not state at all in the order under appeal that those checks imply a decision concerning the tariff classification of the goods imported, such as indicated in the customs declaration and that such checks constitute, accordingly, implementing measures within the meaning of Article 263 TFEU.

56 Consequently, it must be held that the General Court was correct to decide that the contested regulation entailed implementing measures after having shown that, depending on the situation, the communication to the debtor of the amount of duty or the grant of the release of the goods implies a decision concerning the tariff classification of the goods in question.

57 It follows that the first and second parts of the first ground of appeal must be rejected as unfounded.

58 By the third part of the first ground of appeal, Canon Europa submits that the General Court, in paragraph 52 of the order under appeal, erred in law and failed to state sufficient reasons for the finding that the release of the goods or the communication of the amount of duty payable had legal effects and ought to be open to challenge at national level.

59 Canon Europa submits, in particular, that the General Court is wrong to assume that any act which produces certain effects is necessarily open to challenge. According to the appellant, neither the release of the goods nor the communication of the amount of the duty payable is such as to change its legal position since they are not acts requiring an assessment on the part of the customs administration open to challenge. It argues that the only way to obtain a decision open to challenge would be to submit an incorrect declaration and thus to contravene the law.

60 Canon Europa also notes that it cannot challenge an act which simply confirms what it has stated in its customs declaration and argues that, from the point of view of both national and EU law, confirmatory acts cannot be challenged.

62 It must be borne in mind that where a regulatory act entails implementing measures, judicial review of compliance with the EU legal order was ensured irrespective of whether those measures were adopted by the European Union or the Member States. Natural or legal persons who are unable, because of the conditions governing admissibility laid down in the fourth paragraph of Article 263 TFEU, to challenge a regulatory act of the European Union directly before the EU judicature are protected against the application to them of such an act by the ability to challenge the implementing measures which the act entails (judgments in Telefónica v Commission, C‑274/12 P, EU:C:2013:852, paragraph 28, and T & L Sugars and Sidul Açúcares v Commission, C‑456/13 P, EU:C:2015:284, paragraph 30).

63 In that regard, it must be borne in mind that the second subparagraph of Article 19(1) TEU states that Member States are to provide remedies sufficient to ensure effective legal protection in the fields covered by EU law.

64 Thus, as the General Court rightly points out in paragraph 51 of the order under appeal, secondary EU law has expressly prescribed the remedy available to import duty debtors who consider that such duties have been wrongly imposed on them by the customs authorities. That remedy is exercisable at national level, in accordance with the appeals procedure implemented by the Member State in question in compliance with the principles set out in Articles 243 to 246 of the Customs Code which form Title VIII of that code.

65 Accordingly, and in the light of the findings made in respect of the first and second parts of this ground of appeal, it must be held that, in paragraph 52 of the order under appeal, the General Court correctly decided that the release of the goods or, depending on the case, the communication of the amount of duty payable, being implementing measures within the meaning of the fourth paragraph of Article 263 TFEU, must be open to challenge at national level.

66 Furthermore, paragraph 52 of the order under appeal must be read in conjunction with the preceding paragraphs 50 and 51. That reading enables it to be found that the General Court gave reasons sufficient in law for the considerations in paragraph 52 thereof which are disputed by the appellant.

67 Furthermore, with regard to the appellant’s assertion that it cannot challenge an act which confirms information which it gave in its customs declaration, it suffices to note that the fact that a decision concerning the tariff classification of imported goods repeats information provided by the importer in its declaration does not make that decision a confirmatory act, since that presupposes the existence of a prior decision and so does not deprive it of its challengeable nature (see, to that effect, order Forgital Italy v Council, C‑84/14 P, EU:C:2015:517, paragraphs 60 to 62).

69 By the fourth part of the first ground of appeal, Canon Europa argues that the General Court erred in law and failed to state reasons sufficient in law for the consideration in paragraph 54 of the order under appeal that the use of simplified procedures or data-processing techniques did not permit any derogation from the powers devolved to national authorities and that, in that case, the contested regulation also entailed implementing measures.

70 Canon Europa submits that since simplified procedures, provided for in particular in Article 76 of the Customs Code, and data-processing techniques, referred to in particular in Article 61(b) of that code, were used for the import of goods into the European Union, the admissibility of the action should be examined in the sole light of the provisions applicable to the procedures and techniques in question and that, accordingly, the review carried out by the General Court in the light of the normal customs procedure could not enable it to be determined whether Canon Europa had standing to bring an action, within the meaning of Article 263 TFEU. That review ought to have taken account of the substantive differences between the simplified procedures and data-processing techniques used by Canon Europa.

71 Moreover, Canon Europa is of the opinion that the General Court, in paragraph 54 of the order under appeal, fails to identify the simplified customs formalities and merely cites the order in BSI v Council (T‑551/11, EU:T:2013:60) which does not concern the procedures referred to in Articles 61 and 76 of the Customs Code, with the result that it fails to give reasons sufficient in law in that regard.

73 With regard to the General Court’s statement, in paragraph 54 of the order under appeal, that the use of simplified procedures does not mean that no measure is adopted by the customs authorities, it is clear from the sixth and eighth recitals in the preamble to the Customs Code that the aim of the simplified customs procedures is that ‘customs formalities and controls should be … kept to a minimum’ whilst ensuring that the simplifications provided for are not liable to affect adversely the customs interests of the European Union (see, to that effect, judgment in Göritz Intransco International, C‑292/96, EU:C:1998:8, paragraph 22). The use of data-processing techniques, which is part of the wish to simplify customs procedures, meets the same objective.

74 There is nothing in Article 76 of the Customs Code, which lays down procedures simplifying the formalities relating to the customs declaration or, more generally, in that code which leads to the conclusion that the use of those simplified procedures has the result that no decision concerning the tariff classification of the imported goods as regards the declarant. That article states, furthermore, that that simplification of the procedure is made ‘while ensuring that operations are conducted in a proper manner’.

75 It is also appropriate to deduce from the wording of Article 61 of the Customs Cost that the customs declaration made by means of a data-processing technique is equivalent to that made in writing. Article 77 of the Customs Code provides, in that regard, that, where the customs declaration is made by means of a data-processing technique, Articles 62 to 76, dealing with declarations made in writing, are to apply mutatis mutandis without prejudice to the principles set out therein.

76 Moreover, it must be noted that Article 78 of the Customs Code, which allows national customs authorities to make post-clearance checks of the declarations, makes no distinction between the declarations made under the normal procedure and those made under the simplified procedure or using data-processing techniques.

77 It follows from the foregoing considerations that the aim of using simplified procedures and data-processing techniques is not to derogate from the powers conferred on the national customs authorities but to facilitate the customs formalities, particularly in order to accelerate the transport of goods.

78 Thus, it was without erring in law that the General Court held that the use of simplified procedures or data-processing techniques did not permit derogations from the powers devolved to the national authorities and that the contested regulation entailed implementing measures.

79 Concerning the allegation that reasons insufficient in law are given for the considerations in paragraph 54 of the order under appeal, it must be borne in mind that, in accordance with the settled case-law of the Court of Justice, the duty of the General Court to state reasons for its judgments does not require it to provide a statement of reasons which follows, exhaustively and one by one, all the arguments put forward by the parties to the dispute. The reasoning may therefore be implied, on condition that it enables the persons concerned to understand the grounds of the General Court’s judgment and provides the Court of Justice with sufficient evidence to exercise its powers of review on appeal (see, inter alia, judgments in A2A v Commission, C‑318/09 P, EU:C:2011:856, paragraph 97, and Greece v Commission, C‑391/13 P, EU:C:2014:2061, paragraph 58).

80 Although the General Court, in paragraph 54 of the order under appeal, does not identify in detail the formalities to the simplification of which it refers, it is nevertheless appropriate to note that the appellant, at first instance, raised the fact that its declarations had been made using the simplified procedure and using a data-processing technique. It follows that the General Court was clearly referring to those formalities.

81 With respect to the reference in paragraph 54 of the order under appeal to the order in BSI v Council (T‑551/11, EU:T:2013:60), although it is true that that order did not refer to Articles 61 and 76 of the Customs Code but to Article 221 of that code, the reference in paragraph 49 of that precedent, which states that the simplification of a customs procedure does not mean that no measure is adopted by the customs authorities, is relevant to the present case since such a consideration applies to both the simplification provided for in Article 221 of the Customs Code and to the simplifications referred to in Articles 61 and 76 of that code.

82 Accordingly, Canon Europa’s argument that reasons insufficient in law have been given for the General Court’s considerations in paragraph 54 of the order under appeal is unfounded.

84 By the fifth part of the first ground of appeal, Canon Europa submits that the General Court erred in law, in paragraph 53 of the order under appeal, by taking into account the request to invalidate a customs declaration, provided for in Article 66 of the Customs Code, or the request for reimbursement of the duty, provided for in Article 236 of that code, as factors relevant to ascertaining whether the contested regulation entailed implementing measures.

85 Canon Europa submits that those requests are optional procedures and that the aim of the criterion laid down in Article 263 TFEU is not to seek every national measure open to challenge before the national courts. Furthermore, those procedures are not necessary in order for the contested regulation to produce effects.

87 It is apparent from paragraph 52 of the order under appeal that the General Court held that there were procedures for appeal at national level available to the appellant to challenge the tariff classification made following its customs declaration. In paragraph 53 of that order, the General Court set out the courses of action open to the appellant to challenge national implementing measures, such as the procedures for the invalidation of a customs declaration and for reimbursement of duty paid. That indication serves only to illustrate the conclusions reached by the General Court in paragraphs 51 and 52 of the order under appeal.

88 It was thus for the sake of completeness that the General Court noted, in paragraph 53 of the order under appeal, that an importer could rely on Articles 66 or 236 of the Customs Code to show that it had available to it measures enabling it to mount a challenge at national level.

89 In accordance with the settled case-law of the Court, complaints directed against the grounds of a decision of the General Court included purely for the sake of completeness cannot lead to the decision being set aside and are therefore nugatory (judgments in Dansk Rørindustri and Others v Commission, C‑189/02 P, C‑202/02 P, C‑205/02 P to C‑208/02 P and C‑213/02 P, EU:C:2005:408, paragraph 148, and Wünsche Handelsgesellschaft International v Commission, C‑7/14 P, EU:C:2015:205, paragraph 72).

90 In those circumstances, the fifth part of the first ground of appeal must be rejected as nugatory and the first ground of appeal must be rejected in its entirety as being in part unfounded and in part nugatory.

91 By the second ground in support of its appeal, Canon Europa argues, principally, that it adduced evidence in respect of each of the stages of an import procedure carried out in Spain which enabled, in its view, the conclusion to be reached that neither the release of the goods concerned nor the communication of the amount of duty payable contained a decision concerning the tariff classification of those goods which was open to challenge before the national courts. The appellant is of the opinion that the fact that the General Court did not address that evidence infringes its right to be heard, since if that evidence had been taken into account, in its submission, it would have affected the outcome of the proceedings.

92 If it were to be accepted that the evidence was examined by the General Court, Canon Europa argues, in the alternative, that the General Court incorrectly established or classified the facts and that, consequently, its conclusions were also incorrect in law.

93 Canon Europa also submits, in the alternative, that the General Court distorted the evidence since, in its view, a simple interpretation of that evidence shows that, in the present case, no decision was adopted as part of the customs import procedure to determine the tariff classification of the MFMs and none of the stages of the import procedure is open to challenge before the national courts.

95 Firstly, it should be pointed out that the right to be heard in judicial proceedings does not mean that the court has to incorporate in full in its decision all the submissions put forward by each party. The court, after listening to the submissions of the parties and assessing the evidence, has to decide whether or not to grant the relief sought in the application and give reasons for its decision (see judgments in Schröder and Others v Commission, C‑221/97 P, EU:C:1998:597, paragraph 24, and Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 48).

96 In those circumstances, it is appropriate to ascertain whether, in the order under appeal, the General Court complied with those requirements.

97 In that regard, the General Court, in paragraphs 35 to 46 of the order under appeal, first of all, gave detailed reasons for its conclusions that, depending on the case, the release of the goods or the communication of the amount of duty payable contained a decision concerning the tariff classification of the goods in question. Taking that conclusion as its basis, the General Court then, in paragraph 52 of the order under appeal, set out the reasons for its taking the view that both the release of those goods and the communication of the amount of duty payable could be challenged at national level. Finally, in paragraph 54 of that order, the General Court held that the use of simplified procedures and data-processing techniques did not enable those findings to be called into question.

98 It follows therefrom that the General Court took a position on the evidence adduced by the appellant, referred to in paragraph 91 of the present judgment. In any event, Canon Europa does not give details, in the second ground of appeal, of the way in which the General Court’s taking that evidence into account led it to decided that neither the release of the MFMs nor the communication of the amount of duty payable did not contain a decision concerning the tariff classification of those goods open to challenge before the national courts.

99 Accordingly, the complaint alleging an infringement of the appellant’s right to be heard is unfounded.

100 Secondly, with regard to the argument raised in the alternative by Canon Europa that, even if it were to be accepted that the General Court took account of the evidence which Canon Europa adduced, it incorrectly established and classified the facts, it must be noted that the appellant, without supporting its allegation, seeks in truth to have a fresh assessment of that evidence carried out by the Court of Justice.

101 It is clear from the second subparagraph of Article 256(1) TFEU and the first paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal lies on points of law only. The General Court thus has exclusive jurisdiction to find and appraise the relevant facts and to assess the evidence. The appraisal of those facts and the assessment of that evidence thus do not, save where the facts or evidence are distorted, constitute points of law which are subject, as such, to review by the Court of Justice on appeal (see, inter alia, judgment in Les Éditions Albert René v OHIM, C‑16/06 P, EU:C:2008:739, paragraph 68, and order in Repsol YPF v OHIM, C‑466/13 P, EU:C:2014:2331, paragraph 54).

103 Thirdly, with regard to the alleged distortion of that evidence, it is appropriate to note that the arguments raised in support of that complaint are mixed with those raised in support of the first to third parts of the first ground of appeal raised by Canon Europa. Since it follows from paragraphs 37 to 68 of the present judgment that those arguments are unfounded, the allegation of distortion of evidence in the present ground of appeal cannot succeed and must be considered unfounded.

104 Accordingly, the second ground of appeal must be rejected as being in part inadmissible and in part unfounded.

105 Since both grounds of appeal raised by Canon Europa in support of its appeal have been rejected, the appeal must be dismissed in its entirety.

106 In accordance with Article 184(2) of the Rules of Procedure of the Court of Justice, where the appeal is unfounded, the Court shall make a decision as to costs. Under Article 138(1) of those rules, which apply to the procedure on appeal by virtue of Article 184(1) thereof, the unsuccessful party must be ordered to pay the costs if they have been applied for in the successful party’s pleadings. As the Commission has applied for costs and Canon Europa has been unsuccessful, the appellant must be ordered to pay the costs relating to the present proceedings.

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You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> Canon Europa v Commission (Judgment) [2015] EUECJ C-552/14 (10 December 2015) URL: http://www.bailii.org/eu/cases/EUECJ/2015/C55214.html Cite as: ECLI:EU:C:2015:804, [2015] EUECJ C-552/14, EU:C:2015:804

Court of Justice of the European Communities (including Court of First Instance Decisions)