# C_2009282EN.01002102.xml

| 21.11.2009 | EN | Official Journal of the European Union | C 282/21 |
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21.11.2009

EN

Official Journal of the European Union

C 282/21

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Appeal brought on 24 August 2009 by the Republic of Poland against the judgment delivered on 10 June 2009 by the Court of First Instance (First Chamber, Extended Composition) in Case T-257/04 Poland v Commission

(Case C-335/09 P)

2009/C 282/39

Language of the case: Polish

Parties

Parties

Appellant: Republic of Poland (represented by: M. Dowgielewicz, Agent)

Appellant:

Other party to the proceedings: Commission of the European Communities

Other party to the proceedings:

Form of order sought

Form of order sought

| — | set aside in its entirety the judgment delivered on 10 June 2009 by the Court of First Instance of the European Communities in Case T-257/04 Republic of Poland v Commission of the European Communities; |
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set aside in its entirety the judgment delivered on 10 June 2009 by the Court of First Instance of the European Communities in Case T-257/04 Republic of Poland v Commission of the European Communities;

Republic of Poland

Commission of the European Communities

| — | declare invalid Article 3, Article 4(3) and the eighth indent of 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, (1) as amended by Commission Regulation (EC) No 230/2004 of 10 February 2004 (2) and by Commission Regulation (EC) No 735/2004 of 20 April 2004; (3) |
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declare invalid Article 3, Article 4(3) and the eighth indent of 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, (1) as amended by Commission Regulation (EC) No 230/2004 of 10 February 2004 (2) and by Commission Regulation (EC) No 735/2004 of 20 April 2004; (3)

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| — | order the Commission of the European Communities to pay the costs of the proceedings before the Court of First Instance and the Court of Justice; |
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order the Commission of the European Communities to pay the costs of the proceedings before the Court of First Instance and the Court of Justice;

| — | have the appeal heard by the Grand Chamber of the Court. |
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have the appeal heard by the Grand Chamber of the Court.

Pleas in law and main arguments

Pleas in law and main arguments

First, in so far the judgment under appeal states that, in relation to Regulation No 1972/2003, the action was brought after the period for doing so had expired and therefore had to be dismissed as inadmissible (paragraphs 32 to 63 of the judgment under appeal):

| — | it is contended that the Court of First Instance misconstrued Regulation No 1 of the Council determining the languages to be used by the European Economic Community (4) and the Treaty of Accession in finding that the period for bringing an action for a declaration that Regulation No 1972/2003 was invalid began to run from the date of publication of that regulation in the official languages of the Community of Fifteen, and thus before publication in the official languages of the enlarged Community had been completed; |
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it is contended that the Court of First Instance misconstrued Regulation No 1 of the Council determining the languages to be used by the European Economic Community (4) and the Treaty of Accession in finding that the period for bringing an action for a declaration that Regulation No 1972/2003 was invalid began to run from the date of publication of that regulation in the official languages of the Community of Fifteen, and thus before publication in the official languages of the enlarged Community had been completed;

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| — | it is contended that the Court of First Instance misconstrued the fourth paragraph of Article 230 EC in finding that the Republic of Poland could effectively have brought an action seeking a declaration that Regulation No 1972/2003 was invalid before it acceded to the European Union by acting pursuant to that provision as a legal person; |
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it is contended that the Court of First Instance misconstrued the fourth paragraph of Article 230 EC in finding that the Republic of Poland could effectively have brought an action seeking a declaration that Regulation No 1972/2003 was invalid before it acceded to the European Union by acting pursuant to that provision as a legal person;

| — | infringement of the principles of a community based on the rule of law and of effective judicial protection by reason of the fact that the Republic of Poland was deprived of the right to have a judicial examination of the legality of Regulation No 1972/2003, even though that regulation was addressed to the Republic of Poland as a Member State; |
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infringement of the principles of a community based on the rule of law and of effective judicial protection by reason of the fact that the Republic of Poland was deprived of the right to have a judicial examination of the legality of Regulation No 1972/2003, even though that regulation was addressed to the Republic of Poland as a Member State;

| — | infringement of the principles of solidarity and of good faith by reason of the fact that the Republic of Poland was deprived of the right to have a judicial examination of the legality of a measure which unlawfully altered the conditions governing the accession of the Republic of Poland to the European Union and interfered with the balance of rights and obligations resulting from membership of the Community; |
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infringement of the principles of solidarity and of good faith by reason of the fact that the Republic of Poland was deprived of the right to have a judicial examination of the legality of a measure which unlawfully altered the conditions governing the accession of the Republic of Poland to the European Union and interfered with the balance of rights and obligations resulting from membership of the Community;

| — | infringement of procedure in the proceedings before the Court of First Instance by reason of the failure to examine the arguments put forward by the Republic of Poland concerning infringement of the principles of solidarity and good faith, and lack of sufficient reasoning for the judgment under appeal. |
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infringement of procedure in the proceedings before the Court of First Instance by reason of the failure to examine the arguments put forward by the Republic of Poland concerning infringement of the principles of solidarity and good faith, and lack of sufficient reasoning for the judgment under appeal.

Second, in so far as the judgment under appeal rejected the application for a declaration that Regulation No 735/2004 was invalid to the extent to which that regulation made seven categories of goods from the Republic of Poland subject to the measure referred to in Article 4(3) of Regulation No 1972/2003 (paragraphs 80 to 136 of the judgment under appeal):

| — | breach of Article 41 of the Act of Accession and infringement of the principle of proportionality by reason of the finding that the level of payments provided for in Article 4(3) of Regulation No 1972/2003 was appropriate and necessary in order to achieve the objectives of the transitional measure in issue, even though payment in the amount of the difference in customs rates would have been sufficient to prevent speculation and to neutralise speculative profits, that payment in the aforementioned amount could not have brought about realisation of the protective objectives in view of the date on which it entered into force (11 days prior to the date of accession), and despite the lack of any connection between the level of the payment determined and its ostensible purpose; |
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breach of Article 41 of the Act of Accession and infringement of the principle of proportionality by reason of the finding that the level of payments provided for in Article 4(3) of Regulation No 1972/2003 was appropriate and necessary in order to achieve the objectives of the transitional measure in issue, even though payment in the amount of the difference in customs rates would have been sufficient to prevent speculation and to neutralise speculative profits, that payment in the aforementioned amount could not have brought about realisation of the protective objectives in view of the date on which it entered into force (11 days prior to the date of accession), and despite the lack of any connection between the level of the payment determined and its ostensible purpose;

| — | infringement of the principle of non-discrimination by reason of the finding that the level of the payment provided for in Article 4(3) of Regulation No 1972/2003 was determined on the basis of objective criteria of differentiation. |
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infringement of the principle of non-discrimination by reason of the finding that the level of the payment provided for in Article 4(3) of Regulation No 1972/2003 was determined on the basis of objective criteria of differentiation.

Third, in so far as the judgment under appeal rejected the application for a declaration that Regulation No 735/2004 was invalid in so far as it added seven categories of goods from the Republic of Poland to the list of products in the eighth indent of Article 4(5) of Regulation No 1972/2003 (paragraphs 137 to 160 of the judgment under appeal):

| — | breach of Article 41 of the Act of Accession and infringement of the principle of proportionality by reason of the finding that payment of the charges provided for in Article 4(3) of Regulation No 1972/2003 in respect of products for which, prior to accession, the import rates in force in the Republic of Poland were higher than, or equal to, the import rates in force within the Community, was indispensable for the purpose of attaining the objectives of the measures provided for in that regulation. |
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breach of Article 41 of the Act of Accession and infringement of the principle of proportionality by reason of the finding that payment of the charges provided for in Article 4(3) of Regulation No 1972/2003 in respect of products for which, prior to accession, the import rates in force in the Republic of Poland were higher than, or equal to, the import rates in force within the Community, was indispensable for the purpose of attaining the objectives of the measures provided for in that regulation.

Fourth, in so far as the judgment under appeal rejected the application for a declaration that Regulation No 735/2004 was invalid in so far as it added seven categories of goods from the Republic of Poland to the measure provided for in Article 3 of Regulation No 1972/2003 (paragraphs 161 to 249 of the judgment under appeal):

| — | breach of Community law, that is to say, misinterpretation of Article 3 of Regulation No 1972/2003, misinterpretation of Article 41 of the Act of Accession, and infringement of the principle of the hierarchy of legal norms by reason of the finding that Article 3 of Regulation No 1972/2003 was necessary in order to safeguard the effectiveness of Article 4 of that regulation and could have been adopted pursuant to Article 41 of the Act of Accession as a derogation from the provisions of that Act; |
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breach of Community law, that is to say, misinterpretation of Article 3 of Regulation No 1972/2003, misinterpretation of Article 41 of the Act of Accession, and infringement of the principle of the hierarchy of legal norms by reason of the finding that Article 3 of Regulation No 1972/2003 was necessary in order to safeguard the effectiveness of Article 4 of that regulation and could have been adopted pursuant to Article 41 of the Act of Accession as a derogation from the provisions of that Act;

| — | breach of Article 253 EC by reason of the finding that the reasons given for the disputed transitional measure were adequate; |
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breach of Article 253 EC by reason of the finding that the reasons given for the disputed transitional measure were adequate;

| — | infringement of the principle of the free movement of goods by reason of the finding that the transitional measures adopted pursuant to Article 41 of the Act of Accession are not subject to appraisal in regard to their compliance with Article 25 EC; |
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infringement of the principle of the free movement of goods by reason of the finding that the transitional measures adopted pursuant to Article 41 of the Act of Accession are not subject to appraisal in regard to their compliance with Article 25 EC;

| — | infringement of the principle of non-discrimination by reason of the recognition, as being objectively justified, of the difference in treatment between traders from the Republic of Poland and traders from the States of the Community of Fifteen through the application of a suspensive regime to products taken over on the date of accession, while were, prior to accession, in free circulation within the Republic of Poland, an import duty imposed erga omnes, and the release from that duty of those products which, prior to accession, were in free circulation within the Community of Fifteen and in respect of which no export refunds had been applied for; |
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infringement of the principle of non-discrimination by reason of the recognition, as being objectively justified, of the difference in treatment between traders from the Republic of Poland and traders from the States of the Community of Fifteen through the application of a suspensive regime to products taken over on the date of accession, while were, prior to accession, in free circulation within the Republic of Poland, an import duty imposed erga omnes, and the release from that duty of those products which, prior to accession, were in free circulation within the Community of Fifteen and in respect of which no export refunds had been applied for;

erga omnes

| — | infringement of the principle of legitimate expectations by reason of the finding that the Community did not create a situation which could have given rise to legitimate expectations on the part of Polish traders. |
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infringement of the principle of legitimate expectations by reason of the finding that the Community did not create a situation which could have given rise to legitimate expectations on the part of Polish traders.

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(1)  OJ L 293 of 11.11.2003, p. 3.

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(2)  OJ L 39 of 11.02.2004, p. 13.

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(3)  OJ L 114 of 21.04.2004, p. 13.

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(4)  OJ English Special Edition 1952-1958, p. 59.

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