CELEX: 62009CJ0336
Appeal
Common organisation of the markets
Transitional measures adopted because of the accession of new Member States
Regulation (EC) No 60/2004 laying down transitional measures in the sugar sector
Action for annulment
Period within which an action must be brought
Point from which that period starts to run
Lateness
Inadmissibility
Grounds of appeal
Infringement of the principles underlying a community based on the rule of law and of the principle of effective judicial protection

By its appeal, the Republic of Poland seeks to have set aside the order of the Court of First Instance of the European Communities (now ‘the General Court’) of 10 June 2009 in Case T-258/04
Poland
v
Commission
(‘the order appealed against’) by which the General Court dismissed its action seeking annulment of Articles 5, 6(1) to (3), 7(1) and 8(2)(a) of Commission Regulation (EC) No 60/2004 of 14 January 2004 laying down transitional measures in the sugar sector by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia to the European Union (
OJ 2004 L 9, p. 8
).
Legal context
The Accession Treaty and the 2003 Act of Accession
Article 2(3) of the Treaty between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic on the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union (
OJ 2003 L 236, p. 17
; ‘the Accession Treaty’), signed in Athens on 16 April 2003 and ratified by the Republic of Poland on 23 July 2003, provides:
‘Notwithstanding paragraph 2, the institutions of the Union may adopt before accession the measures referred to in [Article 41 of the Act concerning the conditions of accession to the European Union of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (
OJ 2003 L 236, p. 33
; “the 2003 Act of Accession”), annexed to the Accession Treaty]. These measures shall enter into force only subject to and on the date of the entry into force of [the Accession Treaty].’
Article 41 of the 2003 Act of Accession provides:
‘If transitional measures are necessary to facilitate the transition from the existing regime in the new Member States to that resulting from the application of the common agricultural policy under the conditions set out in [the 2003 Act of Accession], such measures shall be adopted by the Commission in accordance with the procedure referred to in Article 42(2) of Council Regulation (EC) No 1260/2001 [of 19 June 2001] on the common organisation of the markets in the sugar sector [(
OJ 2001 L 178, p. 1
)] or, as appropriate, in the corresponding Articles of the other Regulations on the common organisation of agricultural markets or the relevant committee procedure as determined in the applicable legislation. The transitional measures referred to in this Article may be taken during a period of three years following the date of accession and their application shall be limited to that period. The Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may extend this period.
...’
Points 1 and 2 in Chapter 4 (headed “Agriculture”) of Annex IV to the Act of Accession which relates to the list referred to in Article 22 thereof provide:
‘1.   Public stocks held at the date of accession by the new Member States and resulting from their market-support policy shall be taken over by the Community at the value resulting from the application of Article 8 of Council Regulation (EEC) No 1883/78 [of 2 August 1978] laying down general rules for the financing of interventions by the European Agricultural Guidance and Guarantee Fund, “Guarantee” Section [(
OJ 1978 L 216, p. 1
)]. The said stocks shall be taken over only on condition that public intervention for the products in question is provided for in the Community rules and that the stocks meet the Community intervention requirements.
2.   Any stock of product, private as well as public, in free circulation at the date of accession within the territory of the new Member States exceeding the quantity which could be regarded as constituting a normal carryover of stock must be eliminated at the expense of the new Member States.’
Chapter 5 (headed ‘Customs union’) of that annex provides:
‘…
[Council] Regulation (EEC) No 2913/92 [of 12 October 1992 establishing the Community Customs Code (
OJ 1992 L 302, p. 1
)] and [Commission] Regulation (EEC) No 2454/93 [of 2 July 1993 laying down provisions for the implementation of Regulation (EEC) No 2913/92 (
OJ 1993 L 253, p. 1
)] shall apply to the new Member States subject to the following specific provisions:
1.
Notwithstanding Article 20 of Regulation (EEC) No 2913/92, products which on the date of accession are in temporary storage or under one of the customs treatments and procedures referred to in Article 4(15)(b) and (16)(b) to (g) of that Regulation in the enlarged Community, or which are in transport within the enlarged Community after having been the subject of export formalities, shall be free of customs duties and other customs measures when entered for free circulation on condition that one of the following is presented:
…’
Regulation No 60/2004
On 14 January 2004, the Commission adopted Regulation No 60/2004 which establishes, inter alia, in essence and with regard to the present dispute for the sugar sector, a system of charges which derogates for a transitional period from the Community rules otherwise applicable.
Thus, Article 5 of Regulation No 60/2004 provides:
‘Suspensive regime
1.   By way of derogation from Chapter 5 of Annex IV to the [2003] Act of Accession and from Articles 20 and 214 of Council Regulation (EEC) No 2913/92, products falling within CN codes 1701, 1702, 1704, 1904, 1905, 2006, 2007, 2009, 2101 12 92, 2101 20 92, 2105 and 2202 except those listed in Article 4(5) of [Commission] Regulation (EC) No 1972/2003 [of 10 November 2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (
OJ 2003 L 293, p. 3
)], shall be subjected to the
erga omnes
import duty rate, including any additional import duty applicable on the date of release for free circulation, provided that:
(a)
before 1 May 2004, they have been in free circulation in the Community as constituted on 30 April 2004 or in a new Member State, and
(b)
on 1 May 2004, they are:
(i)
in temporary storage, or;
(ii)
under one of the customs treatments or procedures referred to in Article 4(15)(b) and Article 4(16)(b) to (g) of Regulation (EEC) No 2913/92 in the Community, or
(iii)
in transport after having been subject to export formalities within the enlarged Community.
This first subparagraph shall not apply to products, with the exception of refined beet C sugar, C isoglucose syrup and C inulin syrup falling within CN codes 1701 99 10, 1701 99 90, 1702 30 10, 1702 40 10, 1702 60 10, 1702 90 30, 1702 60 80 and 1702 90 80 respectively, exported from the Community of Fifteen, if the importer gives evidence that no export refund has been sought for the products of the country of export. Upon the importer’s request, the exporter shall arrange to obtain an endorsement by the competent authority on the export declaration that an export refund has not been sought for the products of the country of export.
2.   By way of derogation from Chapter 5 of Annex IV to the [2003] Act of Accession and from Articles 20 and 214 of Regulation (EEC) No 2913/92, products falling within CN codes 1701, 1702, 1704, 1904, 1905, 2006, 2007, 2009, 2101 12 92, 2101 20 92, 2105 and 2202, except those listed in Article 4(5) of Commission Regulation (EC) No 1972/2003, coming from third countries, shall be subjected to the [
erga omnes
] import duty, including any additional import duty, applicable on the date of release for free circulation, provided that:
(a)
they are under inward processing referred to in Article 4(16)(d) or temporary admission referred to in Article 4(16)(f) of Regulation (EEC) No 2913/92 in a new Member State on 1 May 2004;
(b)
they are released for free circulation on or after 1 May 2004.’
Article 6 of Regulation No 60/2004 provides:
‘Abnormal stocks
1.   The Commission determines by 31 October 2004 at the latest, for each new Member State, in accordance with the procedure referred to in Article 42(2) of Regulation (EC) No 1260/2001, the quantity of sugar as such or in processed products, isoglucose and fructose exceeding the quantity considered as being normal carry-over stock at 1 May 2004 and which has to be eliminated from the market at the expense of the new Member States.
To determine this surplus quantity, account is in particular taken of the development during the year preceding accession in relation to the previous years of:
(a)
imported and exported quantities of sugar as such or in processed products, isoglucose and fructose;
(b)
production, consumption and stocks of sugar and isoglucose;
(c)
the circumstances in which stocks were built up.
2.   The new Member State concerned ensures the elimination from the market of a quantity of sugar or isoglucose, without Community intervention, equal to the surplus quantity referred to in paragraph 1, by 30 April 2005 the latest:
(a)
by export without refund from the Community;
(b)
by use in the sector of combustibles;
(c)
by denaturation without aid for animal feed …
3.   For the application of paragraph 2, the competent authorities of the new Member States shall dispose on 1 May 2004 of a system for the identification of traded or produced surplus quantities of sugar as such or in processed products, isoglucose or fructose, at the level of the main operators concerned. …
The new Member State shall use that system to compel the operators concerned to eliminate from the market at their own expense an equivalent quantity of sugar or isoglucose of their determined individual surplus quantity. The operators concerned shall provide the proof, to the satisfaction of the new Member State, that products were eliminated from the market by 30 April 2005 at the latest.
In case such proof is not provided, the new Member State shall charge an amount equal to the quantity in question multiplied by the highest import charges applicable to the product concerned during the period from 1 May 2004 to 30 April 2005, increased by EUR 1.21/100 kg in white sugar or dry matter equivalent.
The amount referred to in the third subparagraph shall be assigned to the national budget of the new Member State.
…’
According to Article 9 of Regulation No 60/94:
‘This Regulation shall enter into force on 1 May 2004, subject to the entry into force of the Treaty of Accession …’
The action before the General Court and the order appealed against
By application lodged at the Registry of the General Court on 28 June 2004, the Republic of Poland brought, under Article 230 EC, an action seeking annulment of Articles 5, 6(1) to (3), 7(1) and 8(2)(a) of Regulation No 60/2004.
In its defence, the Commission contended that that action had been introduced out of time.
By the order appealed against, the General Court, sitting in extended composition, declared the action inadmissible.
Having found that the period of two months for bringing an action, laid down in the fifth paragraph of Article 230 EC, had to be calculated from the date of publication of Regulation No 60/2004 in the
Official Journal of the European Union
, that is, 15 January 2004, the General Court held, taking into account the various procedural time-limits, that the overall period for bringing an action for annulment against Regulation No 60/2004 expired on 8 April 2004 at midnight.
Given that the action by the Republic of Poland was lodged on 28 June 2004, the General Court declared that it was late.
Consequently, that action was dismissed.
Form of order sought by the parties
By its appeal, the Republic of Poland asks the Court to set aside the order appealed against.
The European Commission asks the Court to dismiss the appeal and to order the Republic of Poland to bear the costs.
The appeal
The Republic of Poland relies on five grounds in support of its appeal against the order appealed against. Those grounds allege, first, incomplete publication of Regulation No 60/2004, second, the erroneous interpretation of the fourth paragraph of Article 230 EC, third, an infringement of the principles underlying a community based on the rule of law and of the principle of effective judicial protection, fourth, infringement of the principles of solidarity and good faith and the rules of procedure and fifth, lack of reasoning.
At the outset it is necessary to examine the third ground of appeal, alleging infringement of the principles underlying a community based on the rule of law and of the principle of effective judicial protection.
The third ground
Arguments of the parties
The Republic of Poland claims that the General Court, by declaring inadmissible its action for annulment, deprived the new Member States of their right to submit for judicial review, pursuant to the second paragraph of Article 230 EC, the provisions of Regulation No 60/2004, despite the fact that that regulation was addressed to them in their capacity as Member States.
While noting that the strict application of Community rules on procedural time-limits meets the requirement of legal certainty and the need to avoid any discrimination or arbitrary treatment in the administration of justice, the Republic of Poland considers that such application cannot however justify the inequality in judicial protection which would result from the new Member States being unable to challenge the lawfulness of Regulation No 60/2004 in their capacity as Member States, even if they are specifically affected by that regulation.
In order to substantiate its ground of appeal, the Republic of Poland, first, relies on Case
294/83
Les Verts
v
Parliament
[1986] ECR 1339
, paragraph 23, according to which the European Economic Community is a community based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the EC Treaty. Second, the Republic of Poland refers to the Opinion of Advocate General Poiares Maduro in the case which led to the judgment in Case
C-273/04
Poland
v
Council
[2007] ECR I-8925
, paragraph 50, in order to conclude that the General Court flagrantly infringed the principles underlying a community based on the rule of law and the principle of effective judicial protection.
The Commission contends that the General Court, by dismissing as inadmissible an action brought late, did not infringe either the principle of effective judicial protection or the principles underlying a community based on the rule of law. In addition, contrary to the arguments of the Republic of Poland, the fact that it passed from being an applicant to a privileged applicant by reason of the entry into force of the Accession Treaty and of the 2003 Act of Accession did not provide a ground for derogating from the principle that procedural time-limits should be strictly applied.
Findings of the Court
By this ground of appeal, the Republic of Poland complains that the General Court rejected its argument that Regulation No 60/2004 was addressed to all the Member States, including the Republic of Poland, meaning that it should also be allowed to challenge it as an applicant under the second paragraph of Article 230 EC.
In that regard, the General Court, first, pointed out in paragraph 54 of the order appealed against that, while the 2003 Act of Accession specifically provides for the possibility for the Community institutions to adopt certain measures between the date on which that Act was signed and the date on which the new Member States acceded, that Act does not however provide for any derogation from the system of review of the lawfulness of Community measures.
Second, in paragraph 55 of that order, the General Court, with reference to Case
152/85
Misset
v
Council
[1987] ECR 223
, paragraph 11, reiterated that the Community rules concerning procedural time-limits are to be strictly applied.
Finally, the General Court held, in paragraph 56 of that order, that, ‘if the Republic of Poland’s argument is to be understood as meaning that it considered that it had to wait until it became a Member State before it could bring its action, it must be pointed out that the period laid down in Article 230 EC within which proceedings must be brought is of general application’ and that ‘[i]t did not require the Republic of Poland to have the status of a Member State’. The General Court added that ‘[t]hat period for bringing an action applied to it in any event as a legal person’.
In order to address the question whether the Republic of Poland may validly challenge Regulation No 60/2004 as an applicant under the second paragraph of Article 230 EC, it must be noted that Article 2(3) of the Accession Treaty expressly provides for the possibility for the European Union institutions to adopt certain measures before accession.
Among those measures is Article 41 of the 2003 Act of Accession, according to which the Commission is entitled to adopt all the transitional measures necessary to facilitate the transition from the existing regime in the new Member States to that resulting from the application of the common agricultural policy.
Regulation No 60/2004 was adopted on the basis of that article and is, as the Advocate General stated in point 27 of his Opinion, one of the measures the adoption of which is conditional upon accession.
Having been adopted between the date when the Accession Treaty and the 2003 Act of Accession were signed and the date of their entry into force, Regulation No 60/2004 can thus be distinguished from the other provisions of the acquis communautaire which were already in force when the Accession Treaty and the Act of Accession were signed.
Furthermore, despite the fact that Regulation No 60/2004 was published in the
Official Journal of the European Union
before the accession of the new Member States, it is common ground that the measures put in place by that regulation were designed to apply primarily to those new Member States from the date of their accession to the European Union. Thus, in conformity with Article 9 of Regulation No 60/2004, that regulation took effect only subject to and on the date of the entry into force of the Accession Treaty.
It follows from the foregoing, as the Advocate General also stated in points 39 and 40 of his Opinion, that it was only from the time of their accession that the new Member States were affected by the provisions of Regulation No 60/2004 in their capacity as Member States and that it is in that capacity that they should be able to challenge those provisions.
In the present case it is apparent that, as a result of the date of publication of Regulation No 60/2004 in the
Official Journal of the European Union
, namely 15 January 2004, the period of two months for instituting proceedings, laid down in Article 230 EC, had already expired before the Republic of Poland acquired, on the date of its accession to the European Union, that is, 1 May 2004, the status of a Member State.
The new Member States were therefore unable to bring within the prescribed period, as applicants on the basis of the second paragraph of Article 230 EC, proceedings against the measures adopted on the basis of Article 2(3) of the Treaty of Accession.
The European Union is a union based on the rule of law, its institutions being subject to review of the conformity of their acts, inter alia, with the Treaty and the general principles of law (see Joined Cases
C-402/05 P and C-415/05 P
Kadi and Al Barakaat International Foundation
v
Council and Commission
[2008] ECR I-6351
, paragraph 281, and Case
C-550/09
E and F
[2010] ECR I-6213
, paragraph 44).
Those principles are the very foundation of that union and compliance with them means, as is now provided for expressly in Article 4(2) EU, that the new Member States are to be treated on the basis of equality with the old Member States.
Therefore, the new Member States must enjoy, in relation to all measures which, like the act at issue in the present case, were adopted on the basis of Article 2(3) of the Accession Treaty and which affect them in their capacity as Member States, a right of action as applicants pursuant to the second paragraph of Article 230 EC.
Given that that status was acquired by the new Member States only on the date of entry into force of the Accession Treaty and of the 2003 Act of Accession, it must be held that, in relation to those States, the period for instituting legal proceedings laid down in the fifth paragraph of Article 230 EC began to run, in relation to acts of the kind at issue in the present case, only as from that date, that is, in the present case, 1 May 2004.
The General Court was therefore wrong to hold, notwithstanding the specific context of the present case, that it was not necessary for the Republic of Poland to enjoy the status of Member State in order to bring an action under Article 230 EC, the General Court also being mistaken to infer from that finding that the action instituted by that Member State on 28 June 2004 against Regulation No 60/2004 was late and, therefore, inadmissible.
It follows from the foregoing that the third ground of appeal must be regarded as well founded.
Thus, the order appealed against must be set aside, without it being necessary to rule on the four other grounds of appeal relied on by the Republic of Poland.
Since the Court is not, at the present stage of proceedings, in a position to rule on the substance of the action brought by the Republic of Poland, the case must be referred back to the General Court under Article 61 of the Statute of the Court and the costs reserved.

On those grounds, the Court (Grand Chamber) hereby rules:

1.
The order of the Court of First Instance of the European Communities of 10 June 2009 in Case T-258/04
Poland
v
Commission
is set aside.

2.
The case is referred back to the General Court of the European Union for judgment on the form of order submitted by the Republic of Poland seeking annulment of Articles 5, 6(1) to (3), 7(1) and 8(2)(a) of Commission Regulation (EC) No 60/2004 of 14 January 2004 laying down transitional measures in the sugar sector by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia to the European Union.

3.
The costs are reserved.

[Signatures]
(
*1
)	Language of the case: Polish.