CELEX: 62004CJ0310
Actions for annulment
Agriculture
Chapter 10a of Title IV of Regulation (EC) No 1782/2003, inserted by Article 1(20) of Regulation (EC) No 864/2004
Amendment of the support scheme for cotton
Condition that the area is maintained at least until the boll opening
Compliance with Protocol 4 on cotton annexed to the Act of Accession of the Hellenic Republic to the European Communities
Concept of production aid
Obligation to state reasons
Misuse of powers
General principles of proportionality and protection of legitimate expectations

By its application the Kingdom of Spain asks the Court to annul Chapter 10a of Title IV of Council Regulation (EC) No 1782/2003
of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing
certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC)
No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001
(OJ 2003 L 270, p. 1), inserted by Article 1(20) of Council Regulation (EC) No 864/2004 of 29 April 2004 (OJ 2004 L 161, p.
48) (‘Regulation No 1782/2003 as amended’ and, with respect to Chapter 10a of the regulation, ‘the new cotton support scheme’).

Legal context
On the accession of the Hellenic Republic to the European Communities in 1980 a support scheme for cotton was introduced by
Protocol 4 on cotton annexed to the Act of Accession of that Member State (OJ 1979 L 291, p. 174, ‘Protocol 4’).
That scheme was applied for the first time to the 1981 harvest, and was later extended when the Kingdom of Spain and the Portuguese
Republic acceded to the European Communities in 1986.
According to paragraph 2 of Protocol 4, the scheme is intended particularly to support the production of cotton in regions
of the Community where it is important for the agricultural economy, to permit the producers concerned to earn a fair income,
and to stabilise the market by structural improvements at the level of supply and marketing.
Paragraph 3 of Protocol 4, both in its original version and as amended by Council Regulation (EC) No 1050/2001 of 22 May 2001
adjusting, for the sixth time, the system of aid for cotton introduced by Protocol 4 annexed to the Act of Accession of Greece
(OJ 2001 L 148, p. 1) provides that the scheme ‘shall include the grant of an aid to production’.
Paragraph 6 of Protocol 4, as amended by Regulation No 1050/2001, provides that ‘[t]he Council, acting by a qualified majority
on a proposal from the Commission and after consulting the European Parliament, shall decide on the adjustments necessary
to the system introduced pursuant to this Protocol and shall adopt the general rules necessary for implementing the provisions
of this Protocol’.
On the basis of paragraph 6, the Council adopted Council Regulation (EC) No 1051/2001 of 22 May 2001 on production aid for
cotton (OJ 2001 L 148, p. 3).
Under Articles 2, 11 and 12 of that regulation, the production aid for unginned cotton is equivalent to the difference between
the guide price for unginned cotton fixed by the regulation and the world market price, and the aid is paid to cotton ginning
undertakings for the unginned cotton purchased by them at a price at least equal to the minimum price fixed by that regulation.
As part of the reform of the common agricultural policy the Council adopted Regulation No 1782/2003, which lays down common
rules for direct support schemes under the common agricultural policy and for certain support schemes for farmers.
To bring the support schemes for cotton, olive oil, raw tobacco and hops into line with those of other sectors of the common
agricultural policy, the Council adopted Regulation No 864/2004.
Recitals 1, 2, 5, 6, 7, 22 and 23 in the preamble to Regulation No 864/2004 state:
‘(1)      The decoupling of direct producer support and the introduction of the single payment scheme are essential elements in the
process of reforming the common agricultural policy aimed at moving away from a policy of price and production support to
a policy of farmer income support. Regulation (EC) No 1782/2003 … introduced these elements for a variety of agricultural
products.
(2)      In order to meet the objectives that lay at the heart of the reform of the common agricultural policy, the support for cotton,
olive oil, raw tobacco and hops should be largely decoupled and integrated into the single payment scheme.
…
(5)      A complete integration in the single payment scheme of the current support scheme in the cotton sector would bring a significant
risk of production disruption to the cotton producer regions of the Community. A part of the support should therefore continue
to be linked to the cultivation of cotton through a crop specific payment per eligible hectare. Its amount should be calculated
in such a way so as to ensure economic conditions which, in regions which lend themselves to that crop, enable activity in
the cotton sector to continue and prevent cotton from being driven out by other crops. In order to achieve that goal, it is
justified that the total available aid per hectare per Member State is set at 35% of the national share of the aid that went
indirectly to the producers.
(6)      The remaining 65% of the national share of the aid that went indirectly to the producers should be available for the single
payment scheme.
(7)      For environmental reasons, a base area per Member State should be established in order to limit the areas sown under cotton.
In addition, the eligible areas should be restricted to those authorised by the Member States.
…
(22)      The decoupling of the aid for cotton and raw tobacco might require actions towards restructuring. Additional Community support
for the production regions of the Member States in which Community aid for cotton and raw tobacco was granted during 2000,
2001 and 2002 should be made available by a transfer of funds from heading 1(a) to heading 1(b) of the financial perspectives.
This additional support should be used as provided for in Council Regulation (EC) No 1257/1999 of 17 May 1999 on support for
rural development from the European Agricultural Guidance and Guarantee Fund (EAGGF) …
(23)      In order to ensure the harmonious continuation of the payment of income aid to producers in the cotton, olive oil and tobacco
sectors, the option of postponing the integration of these support schemes in the single payment scheme should not apply.’
Regulation No 864/2004 inserted in Title IV of Regulation No 1782/2003 a Chapter 10a, ‘Crop specific payment for cotton’,
which comprises Articles 110a to 110f.
Under Articles 110a to 110c of Regulation No 1782/2003 as amended:
‘
Article 110a
Scope
Aid shall be granted to farmers producing cotton, falling within CN code 5201 00 under the conditions laid down in this Chapter.
Article 110b
Eligibility
1.      The aid shall be granted per hectare of eligible area of cotton. In order to be eligible, the area shall be located on agricultural
land authorised by the Member State for cotton production, sown under authorised varieties and maintained at least until the
boll opening under normal growing conditions.
However, if the cotton does not attain the stage of boll opening as a result of exceptional weather conditions recognised
as such by the Member State, areas fully sown under cotton shall remain eligible for aid provided that the areas in question
have up to the boll opening not been used for any other purpose than for the production of cotton.
2.      Member States shall authorise the land and the varieties referred to in paragraph 1 in accordance with detailed rules and
conditions to be adopted in accordance with the procedure referred to in Article 144(2).
Article 110c
Base areas and amounts
1.      A national base area is hereby established for:
–      Greece: 370 000 ha
–      Spain: 70 000 ha
–      Portugal: 360 ha.
2.      The amount of the aid per eligible hectare shall be in:
–      Greece: EUR 594 for 300 000 hectares and EUR 342.85 for the remaining 70 000 hectares
–      Spain: EUR 1 039
–      Portugal: EUR 556.
…’
Articles 110d and 110e of Regulation No 1782/2003 as amended deal with approved inter-branch organisations, made up of farmers
producing cotton and at least one ginner and ‘aiming at, in particular, the supply of qualitatively suitable unginned cotton
to the ginner’. These inter-branch organisations can differentiate a maximum of half the aid to which their farmer members
are entitled in accordance with scales fixed by them which take into account in particular the quality of the unginned cotton.
Regulation No 864/2004 also inserted in Regulation No 1782/2003 a Title IVB, ‘Financial transfers’, containing inter alia
Article 143d, ‘Financial transfer for restructuring in the cotton regions’, which reads as follows:
‘As from budget year 2007, an amount of EUR [22 million], originating from the average expenditure for cotton in the years
2000, 2001 and 2002, shall be available per calendar year as additional Community support for measures in cotton producing
regions under rural development programming financed under the EAGGF “Guarantee” Section according to Regulation (EC) No 1257/1999.’
Finally, Regulation No 864/2004 inserted in Article 153 of Regulation No 1782/2003 inter alia a Paragraph 4a repealing Regulation
No 1051/2001, which continues, however, to apply to the marketing year 2005/06. Under Article 156(2)(g) of Regulation No 1782/2003
as amended, the new support scheme for cotton is to apply from 1 January 2006 for the cotton sown as from that date.

Forms of order sought by the parties
The Spanish Government claims that the Court should:
–        annul Chapter 10a of Title IV of Regulation No 1782/2003 as amended;
–        order the Council to pay the costs.
The Council asks the Court to dismiss the action as unfounded and order the applicant to pay the costs.
The Commission, which was given leave to intervene in support of the form of order sought by the Council by order of the President
of the Court of 21 September 2004, contends that the Court should dismiss the action as unfounded.

Application by the Council for the case to be referred back to the Court in order for it to be reassigned to the Grand Chamber
By letter lodged at the Court Registry on 5 April 2006, the Council asked for the case to be referred back to the Court in
order for it to be reassigned to the Grand Chamber.
That application was made under the third paragraph of Article 16 of the Statute of the Court of Justice, which provides that
the Court is to sit as a Grand Chamber inter alia when an institution of the Communities that is a party to the proceedings
so requests, and under Article 44(4) of the Rules of Procedure of the Court of Justice, which provides that the formation
to which a case has been assigned may, at any stage of the proceedings, refer the case back to the Court in order that it
may be reassigned to a formation composed of a greater number of judges.
It must be observed that the third paragraph of Article 16 of the Statute requires the Court to sit as a Grand Chamber if
a request to that effect is made by inter alia an institution of the Communities which is a party to the proceedings, whereas
a referral back under Article 44(4) of the Rules of Procedure constitutes a measure which the formation to which the case
has been assigned in principle decides on freely and of its own motion.
However, to allow a request under the third paragraph of Article 16 to be made at a very advanced stage of the proceedings,
in the present case after the close of the oral procedure and thus at the stage of the deliberations, is liable to cause considerable
delay to the progress of the proceedings, and therefore to have effects clearly contrary to the requirement of the proper
administration of justice which means that the Court must be able in any case brought before it to ensure that a decision
is taken following a procedure that is efficient and completed within a proper time.
Moreover, the Court considers in the present case that it is in possession of all the material necessary for it to give judgment.
The Council’s application must therefore be rejected.

The action
In support of its action, the Spanish Government relies on four pleas in law: infringement of Protocol 4, breach of the obligation
to state reasons, misuse of powers, and breach of the general principles of proportionality and the protection of legitimate
expectations.

First plea: infringement of Protocol 4
Arguments of the parties
By its first plea, the Spanish Government submits that, in that it lays down as the sole condition for eligibility for the
specific aid for cotton that the area must be maintained at least until the boll opening, Article 110b of Chapter 10a of Title
IV of Regulation No 1782/2003 as amended is contrary to paragraph 3 of Protocol 4, a provision of primary Community law, and
in particular to the requirement in that provision for a system of aid to production.
It submits that the term ‘production’ in paragraph 3 of Protocol 4 must be understood as laying down, as a condition for the
grant of aid for cotton, that the cotton is harvested.
The reference in the third recital in the preamble to that protocol to the importance of cotton as a raw material should be
understood as referring to cotton that has been harvested, as only harvested cotton can be processed industrially.
Moreover, the explanation provided by Article 1 of Commission Regulation (EEC) No 4006/87 of 23 December 1987 amending Protocol
No 4 on cotton (OJ 1987 L 377, p. 49) that that protocol ‘concerns cotton, not carded or combed, falling within heading No
5201 00 of the combined nomenclature’ makes sense only if the term ‘cotton’ refers to harvested cotton, since, at the boll
opening stage, the cotton is necessarily of that description.
Finally, according to a general principle of law common to the Member States, and enshrined in particular in the civil codes
of several of those States, a natural fruit such as cotton cannot be regarded as being produced before it is harvested, since
before harvesting a fruit has no legal existence separate from the plant and is thus considered to form part of the plant
itself.
The requirement for the area to be maintained at least until the boll opening, laid down by Regulation No 1782/2003 as amended
as the sole condition of eligibility for the new cotton support scheme, no longer – in contrast to the earlier support schemes
– implies that the cotton has to be harvested.
The wording of recital 5 in the preamble to Regulation No 864/2004 and that of Chapter 10a of Title IV of Regulation No 1782/2003
as amended confirm that the new support for cotton is an aid to cultivation, not to production of cotton.
Studies further show that it is foreseeable that, following the entry into force of the new cotton support scheme, it will
no longer be profitable for farmers to ensure that the cotton attains a minimum quality, and consequently they will no longer
harvest it.
Moreover, according to the classification of aid for the purposes of the agreement on agriculture in Annex 1A to the Agreement
establishing the World Trade Organisation, which was approved by the first indent of Article 1(1) of Council Decision 94/800/EC
of 22 December 1994 concerning the conclusion on behalf of the European Community, as regards matters within its competence,
of the agreements reached in the Uruguay Round multilateral negotiations (1986-1994) (OJ 1994 L 336, p. 1) (‘the WTO agreement
on agriculture’), the new support scheme for cotton moves from the ‘amber box’ (support for production referred to in Article
6 of that agreement) to the ‘blue box’ (direct payments under production-limiting programmes based on fixed area and yields
within the meaning of Article 6(5) of the agreement).
That confirms that in the new scheme no importance is attached to the production of cotton.
Consequently, that scheme can no longer be classified as aid to production within the meaning of paragraph 3 of Protocol 4.
The Council submits that the new cotton support scheme is entirely compatible with Protocol 4, in particular paragraph 3,
as it is indeed a scheme of aid to production, even if the event that gives rise to the payment of the aid is now the maintenance
of cultivation until the boll opening stage.
Findings of the Court
By its first plea the Spanish Government contests the compatibility of the new condition of eligibility for the specific aid
which is part of the new cotton support scheme, namely that the area is maintained at least until boll opening, with paragraph
3 of Protocol 4.
It is common ground that this new condition of eligibility for aid does not require the cotton to be harvested. This plea
therefore raises essentially the question whether the obligation in paragraph 3 of Protocol 4 to provide for a system of aid
to production must be understood as implying that such a system must necessarily make the grant of aid subject to a condition
of harvesting.
As the Council has observed, the concept of production as usually accepted refers to a process consisting of several stages.
In the absence of a definition of the term in Protocol 4, nothing in the text or the context of that act indicates that, in
the framework of the protocol, the concept of production has a different meaning from that usually accepted.
In that respect, the mention in the preamble to Protocol 4 of the importance of cotton as a raw material does not imply that
the protocol refers only to harvested cotton.
That mention, taken in the context of the preamble of which it forms part, must be understood as merely pointing out that
in view of the importance of cotton as a raw material the support scheme for cotton must not have negative effects on trade
with third countries.
As regards, next, the explanation provided by Article 1 of Regulation No 4006/87 that Protocol 4 concerns cotton, not carded
or combed, falling within heading No 5201 00 of the combined nomenclature, that statement in no way excludes cotton as it
is at the time of boll opening. At that stage, just indeed as at the later stage of harvesting, the cotton by definition is
not carded or combed.
Furthermore, the meanings of the concepts of production, product or fruit which might be derived, as the Spanish Government
submits, from definitions common to the civil laws of certain Member States, or even from the classification of aid for the
purposes of the WTO agreement on agriculture, are irrelevant in this respect.
Consequently, the manifestly restrictive definition of production suggested by the Spanish Government, according to which
that term refers only to the final stage of production constituted by the harvest, cannot be accepted.
Moreover, the usual meaning of the term production, which refers to the production process as a whole, must be seen in relation
to the broad discretion enjoyed by the Council under paragraph 6 of Protocol 4, both in deciding on the adjustments necessary
to the system introduced by that protocol and in adopting the general rules necessary for implementing the provisions of the
protocol.
In the framework of that broad discretion, the Council can make the grant of aid for cotton conditional on the occurrence
of one or other stage in the cultivation of cotton.
The measure chosen must nevertheless be proportionate to the objectives defined in paragraph 2 of Protocol 4. The question
whether that limitation was complied with in the present case is the subject of the second part of the fourth plea put forward
by the Spanish Government.
It was therefore permissible in principle for the Community legislature to choose, as a condition of eligibility for the aid
for cotton, one stage of cultivation, in this case that of the boll opening, rather than the final stage consisting of the
harvest, a stage which had to be completed in the previous support schemes.
Consequently, the references in recital 5 in the preamble to Regulation No 864/2004 and in the title of Chapter 10a of Title
IV of Regulation No 1782/2003 as amended to the new cotton support scheme as aid to cultivation do not mean that that aid
does not constitute an aid to cotton production within the meaning of paragraph 3 of Protocol 4.
The conclusion must be that the concept of aid to production, as it appears in paragraph 3 of Protocol 4, does not preclude
the condition of eligibility for the specific aid provided for by the new cotton support scheme consisting in the requirement
that the area is maintained at least up to the boll opening.
The first plea must therefore be rejected.

Second plea: breach of the obligation to state reasons
Arguments of the parties
By its second plea the Spanish Government submits that the obligation to state reasons laid down in Article 253 EC was not
complied with in connection with the adoption of the new cotton support scheme, since Regulation No 864/2004 introducing that
scheme nowhere mentions the reasons for which the Community legislature replaced the previous scheme, under which indirect
aid was passed on to producers by ginning undertakings in relation to the cotton harvested, by a scheme introducing direct
aid to producers, the grant of which is now subject to the sole condition of maintaining the cultivation of the cotton up
to the boll opening.
The Council considers that the limits set by the Court’s case-law on statements of reasons for legislative acts of general
application were observed. It suffices in this respect to note that Regulation No 864/2004 sets out the general reasons which
led the Community legislature, in the exercise of its broad discretion, to adopt the provisions that are the subject of the
present action. Moreover, the Community legislature was not obliged to explain specifically why under the new scheme the payment
of coupled aid is no longer linked to the quantity or quality of the cotton harvested but to the cotton cultivated on a given
area.
Findings of the Court
It is settled case-law that the statement of reasons required by Article 253 EC must be appropriate to the nature of the act
at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the
measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable
the Community Court to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts
and points of law, since the question whether the statement of reasons for a measure meets the requirements of Article 253
EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter
in question (see, inter alia, Case C‑26/00
Netherlands
v
Commission
[2005] ECR I‑6527, paragraph 113 and the case-law cited).
In the case of a measure intended to have general application, as here, the statement of reasons may be limited to indicating,
first, the general situation which led to its adoption and, second, the general objectives which it is intended to achieve
(see, inter alia, Case C‑342/03
Spain
v
Council
[2005] ECR I‑1975, paragraph 55).
Moreover, the Court has repeatedly held that if the contested measure clearly discloses the essential objective pursued by
the institution, it would be excessive to require a specific statement of reasons for the various technical choices made (see,
inter alia, Case C‑284/94
Spain
v
Council
[1998] ECR I‑7309, paragraph 30).
In this respect, it must be stated that the preamble to Regulation No 864/2004 gives a transparent and clear summary of the
general situation which led the Community legislature to adopt that act and the general objectives pursued.
Recitals 1 and 2 in the preamble to that regulation show that the changes made by the regulation are intended to bring the
support schemes in certain sectors of the common agricultural policy, including cotton, into line with the objectives of the
reform introduced for the other sectors of that policy by Regulation No 1782/2003.
Recital 2 states that those objectives involve, for the sectors concerned, moving away from a policy of price and production
support to a policy of income support for farmers, and hence decoupling a large part of the support and integrating it into
the single payment scheme.
Recitals 5 and 6 in the preamble to Regulation No 864/2004 then set out the reasons for which support for cotton cannot be
completely decoupled. They also explain the bases on which the amount of support to remain coupled is to be fixed, and state
that that amount corresponds to 35% of the total existing indirect aid and that the remaining 65% of that total is to be available
for the single payment scheme.
It must be concluded that those recitals together disclose the essence of the objective pursued by the institution in adopting
Regulation No 864/2004 in so far as it introduces the new cotton support scheme.
The Community legislature was not therefore required additionally to give specific reasons for the various technical choices
made, such as the choice to make the grant of the specific aid for cotton conditional on the maintenance of cultivation of
the cotton up to the boll opening stage.
It follows that the second plea must also be rejected.

Third plea: misuse of powers
Arguments of the parties
The Spanish Government submits that, in so far as Regulation No 864/2004 establishes the new cotton support scheme, it is
vitiated by the misuse of powers, since it was adopted on the basis of paragraph 6 of Protocol 4, but for a different purpose
from that referred to there, and with the essential aim of circumventing the specific procedure provided for by the EC Treaty
for amending the provisions of primary law in that protocol.
The Council replies that the introduction of the new cotton support scheme by the contested provisions of Regulation No 1782/2003
as amended corresponds perfectly to the concept of ‘necessary adjustment’ mentioned in paragraph 6 of Protocol 4, so that
there can be no question of a misuse of powers.
Findings of the Court
As the Court has repeatedly held, an act is vitiated by misuse of powers only if it appears, on the basis of objective, relevant
and consistent evidence, to have been taken with the exclusive or main purpose of achieving an end other than that stated
or evading a procedure specifically prescribed by the Treaty for dealing with the circumstances of the case (see, to that
effect, inter alia, Case C‑342/03
Spain
v
Council
, paragraph 64 and the case-law cited).
The Spanish Government has not adduced any such evidence.
As regards the aims pursued by the Council when adopting Regulation No 864/2004, in so far as it established the new cotton
support scheme, there is nothing in the case-file to support the conclusion that the Council pursued an exclusive or main
aim other than that stated in recitals 1 and 2 in the preamble to that regulation, namely adjusting the support scheme in
the cotton sector to bring it into line with the objectives of the reform that had already been introduced for other sectors
of the common agricultural policy by Regulation No 1782/2003.
Nor has the Spanish Government shown that, by adopting Regulation No 864/2004 on the basis of paragraph 6 of Protocol 4, the
Council pursued the exclusive or main aim of evading the procedure prescribed for the revision of provisions of primary law.
In this respect, it must be noted that the legal basis constituted by paragraph 6 of Protocol 4 confers a wide discretion
on the Council to decide on the necessary adjustments to the cotton support scheme provided for by the protocol.
The Spanish Government has not produced any evidence to show that the Council in fact pursued an aim other than that of making
such adjustments and thus followed the procedure laid down in paragraph 6 of Protocol 4 for making those adjustments with
the exclusive or main aim of evading the procedure prescribed for the revision of provisions of primary law.
Finally, it is apparent from recital 5 in the preamble to Regulation No 864/2004 that, in adopting that act in so far as it
amends the cotton support scheme, the Council intended to comply with the objectives laid down in paragraph 2 of Protocol
4, namely to support the production of cotton in regions of the Community where it is important for the agricultural economy,
to permit the producers concerned to earn a fair income, and to stabilise the market by structural improvements at the level
of supply and marketing.
Whether those objectives were achieved is the subject of the second part of the fourth plea, alleging breach of the principle
of proportionality. There is no need therefore to consider the point in connection with the present plea.
In the light of the foregoing, the third plea must also be rejected.

Fourth plea: breach of the general principles of Community law of proportionality and protection of legitimate expectations
The second part of this plea, relating to the principle of the protection of legitimate expectations, should be examined first,
followed by the first part, relating to the principle of proportionality.
Breach of the principle of the protection of legitimate expectations
–       Arguments of the parties
The Spanish Government submits that the adoption of Regulation No 864/2004 establishing the new cotton support scheme infringed
the legitimate expectations of operators in the cotton sector, who could expect to continue to benefit from a support scheme
complying in any case with the objectives stated in paragraph 2 of Protocol 4, in particular the maintenance of cotton production
in certain regions of the Community, and the requirement of a system of aid to production as provided for in paragraph 3 of
the protocol.
The Council submits that the adoption of that regulation did not infringe the legitimate expectations of operators in the
cotton sector in the maintenance of an aid system compatible with Protocol 4, as the new cotton support scheme is fully compatible
with the objectives of that protocol and does not cause them the considerable loss alleged by the Spanish Government, their
income remaining stable.
–       Findings of the Court
According to the Court’s settled case-law, any economic operator on whose part an institution has promoted reasonable expectations
may rely on the principle of the protection of legitimate expectations. However, if a prudent and circumspect operator could
have foreseen that the adoption of a Community measure is likely to affect his interests, he cannot plead that principle if
the measure is adopted. Furthermore, while the principle of the protection of legitimate expectations is one of the fundamental
principles of the Community, economic operators are not justified in having a legitimate expectation that an existing situation
which is capable of being altered by the Community institutions in the exercise of their discretionary power will be maintained,
particularly in an area such as that of the common organisation of the markets, the objective of which involves constant adjustment
to reflect changes in economic circumstances (Joined Cases C‑37/02 and C‑38/02
Di Lenardo and Dilexport
[2004] ECR I‑6911, paragraph 70 and the case-law cited).
In the present case, the Spanish Government has not produced any evidence to show that the operators concerned could have
entertained any reasonable expectation promoted by the Community institutions that the rules applicable to aid in the cotton
sector before their amendment by Regulation No 864/2004 would be maintained.
Moreover, in the present case, the principle of the protection of legitimate expectations cannot be relied on, since a prudent
and circumspect operator could have foreseen the adoption of Regulation No 864/2004 and that regulation’s reform of the cotton
support scheme.
As the Advocate General observed in point 70 of her Opinion, that reform was part of a more extensive fundamental reform that
had been discussed at political level since 1992 and was moreover specifically envisaged in point 2 of Commission Communication
COM(2003) 698 final, adopted on 20 November 2003, which contained a proposal for amendment to Regulation No 1782/2003 and
was the subject of a notice published in the Official Journal (OJ 2004 C 96, p. 5). Furthermore, the support scheme in the
cotton sector had already been the subject of several substantial reforms in the past.
Finally, in so far as the Spanish Government alleges that the principle of the protection of legitimate expectations was infringed
because the new cotton support scheme does not comply with the objectives of Protocol 4, that argument merges with the argument
put forward in support of the first part of the fourth plea, so that it need not be examined in the context of this part.
Consequently, the second part of the fourth plea, alleging breach of the principle of protection of legitimate expectations,
must be rejected.
Breach of the principle of proportionality
–       Arguments of the parties
The Spanish Government submits essentially that the measures adopted in the context of the new cotton support scheme, in particular
fixing the amount of the specific aid for cotton at the level of 35% of the aid available under the previous support scheme
and making eligibility for the aid conditional only on the maintenance of cultivation until the boll opening, are manifestly
inappropriate to the objective as set out in recital 5 in the preamble to the regulation, an objective that reflects the aim
laid down in paragraph 2 of Protocol 4. The principle of proportionality has therefore been infringed.
Two studies produced by the Spanish Government show that the foreseeable consequence of those measures will be that the profitability
of cotton production in the Spanish regions concerned will not be ensured.
The probable result of that will be, in particular, the abandoning of a considerable part of Spanish production of raw cotton,
or even its replacement by other crops, and a substantial decrease in the degree of utilisation of the processing capacity
of the ginning plants in the production regions, threatening their economic viability and possibly even leading to their definitive
closure.
That latter development would be likely to bring about a further fall in cotton production, since production is not possible
without the presence, and hence the economic viability, of such plants in the vicinity of the production regions concerned,
as cotton has scarcely any commercial value before it is processed, and it cannot be transported over long distances.
The Council and the Commission submit that the disputed measures are not manifestly inappropriate in relation to their objectives
as set out in paragraph 2 of Protocol 4 and recital 5 in the preamble to Regulation No 864/2004.
The income of producers under the new cotton support scheme, namely the total of the single payment, the specific aid per
hectare and the selling price of the harvest, remains substantially the same as under the previous system, so that the profitability
of cotton producing undertakings is not affected by the introduction of the new scheme.
Moreover, a comparative study of the foreseeable profitability of cotton growing under the new support scheme compared to
that of other crops shows that the amount of the specific aid per hectare was fixed at a level which allows producers to achieve
for cotton a gross margin excluding the single payment comparable to that produced by other crops such as durum wheat or maize.
Consequently, since cotton growing remains viable according to the forecasts, it is not probable that it will be driven out
by other crops.
–       Findings of the Court
The Court’s settled case-law on the principle of proportionality should first be recalled, as it applies in particular in
the context of the common agricultural policy.
The Community legislature has a wide discretion where the common agricultural policy is concerned, corresponding to the political
responsibilities given to it by Articles 34 EC to 37 EC. Consequently, judicial review by the Community Court must be limited
to verifying that the measure in question is not vitiated by any manifest error or misuse of powers and that the authority
concerned has not manifestly exceeded the limits of its discretion (Case C‑189/01
Jippes and Others
[2001] ECR I‑5689, paragraph 80 and the case-law cited).
As to review of proportionality, it should be recalled that the principle of proportionality, which is one of the general
principles of Community law, requires that acts adopted by Community institutions do not exceed the limits of what is appropriate
and necessary in order to attain the legitimate objectives pursued by the legislation in question; where there is a choice
between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be
disproportionate to the aims pursued (
Jippes
, paragraph 81 and the case-law cited).
As regards judicial review of the implementation of that principle, bearing in mind the wide discretion enjoyed by the Community
legislature where the common agricultural policy is concerned, the lawfulness of a measure adopted in that sphere can be affected
only if the measure is manifestly inappropriate in terms of the objective which the competent institution is seeking to pursue
(
Jippes
, paragraph 82 and the case-law cited).
What must be ascertained is therefore not whether the measure adopted by the legislature was the only one or the best one
possible but whether it was manifestly inappropriate (see, to that effect,
Jippes
, paragraph 83).
As to the new cotton support scheme established by Regulation No 864/2004, it is apparent from recital 5 in the preamble to
that regulation that the amount of the specific aid for cotton was determined in such a way as to ensure economic conditions
which, in regions which lend themselves to that crop, enable activity in that sector of agriculture to continue and thus prevent
cotton from being driven out by other crops.
That objective reflects, and defines more precisely, those stated in paragraph 2 of Protocol 4, according to which the system
of production aid in the cotton sector is intended in particular to support the production of cotton in regions of the Community
where it is important for the agricultural economy, to permit the producers concerned to earn a fair income, and to stabilise
the market by structural improvements at the level of supply and marketing.
As follows from the case-law cited in paragraphs 98 and 99 above, this part of the plea put forward by the Spanish Government
implies an examination of whether the contested measures of the new cotton support scheme are manifestly inappropriate in
terms of that objective, which consists essentially in fixing the amount of the specific aid for cotton at a level such that
it ensures adequate profitability and hence the continuation of cotton production in regions which lend themselves to that
crop, thus avoiding its being driven out by other crops.
It is common ground that the adoption of Regulation No 864/2004 was not preceded by a Commission study assessing the probable
socio-economic effects of the proposed reform in the cotton sector, whereas such studies had been carried out in connection
with the reform of support schemes in some other sectors, such as the tobacco sector.
The question therefore arises of the bases on which the amount of the specific aid for cotton was determined, and consequently
of whether, on those bases, the Community legislature was able, without exceeding its broad discretion, to reach the conclusion
that, if set at 35% of the total existing aid in the previous support scheme, that amount would suffice for attaining the
objective pursued of ensuring the profitability and hence the continuation of that crop.
In this respect, the Council points to a table drawn up by the Commission containing a comparative study of the foreseeable
profitability of cotton growing under the new support scheme in comparison with that of other crops. The Council observes
that those figures were submitted to it so that they could be taken into account in the adoption of Regulation No 864/2004.
According to the study, the gross margin per hectare excluding the single payment is EUR 744 for cotton, and is thus between
the margin for durum wheat, EUR 334, and that for maize, EUR 914. The Commission asserted at the hearing that those figures
demonstrate that cotton growing will remain profitable and possible after the entry into application of the reform.
The margin in question is calculated according to a formula consisting essentially in subtracting from income per hectare
– made up of the selling price of raw cotton, corresponding to EUR 750, and the specific aid of EUR 1 039, giving a total
of EUR 1 789 – the production costs, those being the sum of the specific costs and overheads, which, according to the Commission,
are to be assessed at EUR 1 045 per hectare.
The Council submits, however, that for the purposes of that study of the future profitability of cotton growing account should
also be taken of the income deriving from the single payment equivalent to 65% of the existing aid in that sector.
It submits that, since the sum of the coupled and decoupled aid under the new cotton support scheme is equivalent to the total
amount of the indirect aid granted under the previous support scheme, there is no reason to doubt the future profitability
of cotton growing. The reform of aid for that crop is based on its budgetary neutrality.
That point of view must be rejected. As the Spanish Government observed without being contradicted by the Commission, in the
case of a comparative study of the profitability of alternative crops, the single payment should not be taken into account,
as it is granted independently of the crop chosen and even if the farmer decides not to produce anything.
That payment therefore has no influence on the farmer’s decision to choose one crop rather than another. The budgetary neutrality
of the reform is of no relevance in itself for assessing whether in future farmers will choose to abandon cotton growing or,
if so, to replace it by other crops.
Relying on two studies, the Spanish Government moreover challenges certain figures used in the calculation of the profitability
of cotton growing put forward by the Commission, in particular that relating to production costs.
According to those studies, it submits, those costs in fact amount to a minimum of EUR 1 861.81 per hectare. That amount includes
labour costs, whereas the corresponding amount used by the Commission wrongly excludes them. Adding the labour costs to the
figure of EUR 1 045 per hectare put forward by the Commission reduces to 10% the difference between the Commission’s figure
and that adduced by the Spanish Government as regards total production costs.
It submits that, since cotton growing requires a much larger workforce than other crops, it is essential that such costs are
taken into account in a study of the future profitability of cotton growing.
If, then, the Commission’s calculation included labour costs and also took into consideration a selling price consistent with
the present level of the market, production costs would be higher than producers’ income under the new support scheme, and
the gross margin to be expected for cotton would be zero or even negative, with farmers therefore liable to be working at
a loss if they continue to produce cotton.
On being questioned on this point at the hearing, the Commission explained that the amount of EUR 1 045 per hectare it took
as overheads included in the production costs covers certain labour costs, including those of temporary or seasonal workers
and persons performing specific work.
However, submits the Commission, a study of the comparative profitability of crops should take account only of specific costs,
that is, those linked to the crops concerned, and not of fixed costs, that is, those linked to the operation. The Commission
therefore did not include the labour costs of a fixed nature, such as the costs of the farmers’ workforces and their families.
The Commission adds that the latter costs could not in any case have been included in the calculation of profitability. First,
great – and moreover inexplicable – differences had been observed between the figures for the various regions relating to
those costs, so that those figures were not reliable. Second, it is very difficult to divide those costs among the different
crops and other activities carried on in each farming operation.
In the light of those explanations, the Court must consider whether, by fixing the amount of the specific aid for cotton on
the basis of the comparative study referred to in paragraph 105 above, the Community institutions infringed the principle
of proportionality.
It is true that where, as in the present case, the Community legislature has to assess the future effects of legislation to
be enacted although those effects cannot be accurately foreseen, its assessment is open to criticism only if it appears manifestly
incorrect in the light of the information available to it at the time of the adoption of the legislation in question (
Jippes
, paragraph 84 and the case-law cited).
It is also true that the Community legislature’s broad discretion, which implies limited judicial review of its exercise,
applies not only to the nature and scope of the measures to be taken but also, to some extent, to the finding of the basic
facts (see, inter alia, Case C‑120/99
Italy
v
Council
[2001] ECR I‑7997, paragraph 44).
However, even though such judicial review is of limited scope, it requires that the Community institutions which have adopted
the act in question must be able to show before the Court that in adopting the act they actually exercised their discretion,
which presupposes the taking into consideration of all the relevant factors and circumstances of the situation the act was
intended to regulate.
It follows that the institutions must at the very least be able to produce and set out clearly and unequivocally the basic
facts which had to be taken into account as the basis of the contested measures of the act and on which the exercise of their
discretion depended.
As was noted in paragraphs 116 to 118 above, it is apparent from the information provided by the Commission at the hearing
that certain labour costs were not included and were thus not taken into consideration in the comparative study of the foreseeable
profitability of cotton growing under the new support scheme which was used as the basis of the determination of the amount
of the specific aid for cotton.
The Spanish Government submits, however, relying on studies giving figures, that those costs can be calculated, that they
are significant, and that taking them into account creates serious doubts as to the profitability of cotton growing under
the new support scheme.
Without it being necessary to take a decision on the correctness of the figures produced by the various parties, it must be
said that the relevance of the labour costs in question for the purposes of calculating the production costs of cotton and
the foreseeable profitability of that crop appears in itself to be scarcely deniable. The circumstance relied on by the Commission
that obtaining that information would have raised certain technical problems cannot call into question its relevance.
Moreover, it must be observed that the Council and the Commission have not put forward specific arguments to disprove the
Spanish Government’s assertion that the inclusion of those costs entails an increase in the production costs of cotton such
that adequate profitability of that crop under the new support scheme is not ensured, so that that crop, or at least a substantial
part of it, is liable to be given up or in some cases driven out by other crops.
It is also common ground that the potential effects of the reform of the cotton support scheme on the economic situation of
the ginning undertakings were not examined.
Admittedly, as the Council observes, the requirement which follows from paragraph 2 of Protocol 4 of maintaining the profitability
of cotton production applies as such to cotton producers and not to ginning undertakings.
However, a proper study of the effects of that reform on the profitability of cotton production requires an examination of
the consequences the reform is liable to produce for ginning undertakings situated in the production regions.
As the Spanish Government pointed out without being contradicted, cotton production is not economically possible without the
presence in the vicinity of the production regions of such undertakings operating under economically sustainable conditions,
since cotton has little commercial value before being processed and it cannot be transported over long distances.
The production of cotton and its processing by the ginning undertakings thus appear to be inextricably linked. The potential
effects of the reform of the cotton support scheme on the economic viability of the ginning undertakings therefore constitute
a basic factor to be taken into account in order to assess the profitability of cotton growing.
In those circumstances, the conclusion must be that the Council, the author of Regulation No 864/2004, has not shown before
the Court that in adopting the new cotton support scheme established by that regulation it actually exercised its discretion,
involving the taking into consideration of all the relevant factors and circumstances of the case, including all the labour
costs linked to cotton growing and the viability of the ginning undertakings, which it was necessary to take into account
for assessing the profitability of that crop.
It follows that the information submitted by the Community institutions does not enable the Court to ascertain whether the
Community legislature was able, without exceeding the bounds of the broad discretion it enjoys in the matter, to reach the
conclusion that fixing the amount of the specific aid for cotton at 35% of the total existing aid under the previous support
scheme would suffice to guarantee the objective set out in recital 5 in the preamble to Regulation No 864/2004, namely to
ensure the profitability and hence the continuation of that crop, an objective reflecting that laid down in paragraph 2 of
Protocol 4.
Consequently, it must be concluded that the principle of proportionality was infringed.
It follows that the fourth plea, in so far as it alleges that that principle was infringed, is well founded, and the application
must be allowed.
In the light of all the foregoing, Chapter 10a of Title IV of Regulation No 1782/2003 as amended must be annulled.

Limitation of the effects of the annulment
Under the second paragraph of Article 231 EC, the Court may, if it considers it necessary to do so, state which of the effects
of the regulation that it has declared void are to be considered as definitive.
In the present case, it should be noted that under Article 156(2)(g) of Regulation No 1782/2003 as amended the new cotton
support scheme is to apply as from 1 January 2006 for the cotton sown as from that date.
Farmers in the Member States concerned may consequently already have taken steps to adapt to that scheme so as to be able
to benefit from the support it provides for, or at least will have to take such steps shortly. Moreover, the competent authorities
of those Member States may already have taken the necessary measures for implementing the scheme, or will soon have to take
such measures.
In the light of those factors, and in particular in order to avoid any legal uncertainty as to the scheme applicable to aid
in the cotton sector following the annulment of Chapter 10a of Title IV of Regulation No 1782/2003 as amended, the effects
of the annulment must be suspended until the adoption, within a reasonable time, of a new regulation.

Costs
Under Article 69(2) 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. Since the Kingdom of Spain has applied for costs and the Council has been
unsuccessful, the Council must be ordered to pay the costs. In accordance with Article 69(4) of the Rules of Procedure, the
institutions which have intervened in the proceedings are to bear their own costs.
On those grounds, the Court (Second Chamber) hereby:
1.
Annuls Chapter 10a of Title IV of Council Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for
direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending
Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999,
(EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001, inserted by Article 1(20) of Council Regulation
(EC) No 864/2004 of 29 April 2004;
2.
Orders the effects of that annulment to be suspended until the adoption, within a reasonable time, of a new regulation;
3.
Orders the Council of the European Union to pay the costs;
4.
Orders the Commission of the European Communities to bear its own costs.
[Signatures]
*
Language of the case: Spanish.