Opinion of the Advocate General — ECLI:EU:C:2005:93
Date: 2005-02-17
Language of the case: Dutch
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Overseas countries and territories;Sugar
Procedure: Action for annulment;Appeal - unfounded

summary publication, paragraph 1 of the summary. 26 – In its appeal (paragraphs 31 to 35), Rica Foods puts forward a third complaint, which will be considered in the context of the third plea (see points 63 to 70 of this Opinion). 27 – Rica Foods’ appeal (paragraphs 16 to 19 and 24 to 26). 28 – See, as recent examples, Case C-122/01 P T. Port v Commission [2003] ECR I‑4261, paragraph 27, and order of 9 July 2004 in Case C-116/03 Fichtner v Commission, not published in the ECR, paragraph 33. 29 – Rica Foods II, paragraph 101. 30 – Ibid., paragraph 120. 31– See, in particular, Case C-136/92 P Commission v Brazzelli Lualdi and Others [1994] ECR I-1981, paragraph 66; Case C-401/96 P Somaco v Commission [1998] ECR I-2587, paragraph 54, and Case C-185/95 P Baustahlgewebe v Commission [1998] ECR I-8417, paragraph 24. 32 – Case C-53/92 P Hilti v Commission [1994] ECR I-667, paragraph 42; Case C‑362/95 P Blackspur DIY and Others v Council and Commission [1997] ECR I-4775, paragraph 29; Case C-8/95 P New Holland Ford v Commission [1998] ECR I-3175, paragraph 26; Baustahlgewebe v Commission, paragraph 24; Case C-257/98 P Lucaccioni v Commission [1999] ECR I-5251, paragraphs 45 to 47; and orders in Case C‑55/97 P AIUFFASS and AKT v Commission [1997] ECR I-5383, paragraph 25; Case C‑140/96 P Dimitriadis v Court of Auditors [1997] ECR I‑5635, paragraph 35, and order of 27 January 2000 in Case C-341/98 P Proderec v Commission, not published in the ECR, paragraph 28. 33 – See Case C-164/98 P DIR International Film and Others v Commission [2000] ECR I-447, paragraphs 47 and 48, and Case C-197/99 P Belgium v Commission [2003] ECR I‑8461, paragraph 67. 34 – See, in particular, order in Case C-459/00 P(R) Commission v Trenker [2001] ECR I-2823, paragraph 71. 35 – See, in particular, Case C-277/01 P European Parliament v Samper [2003] ECR I-3019, paragraph 40. 36 – Statement in intervention (paragraph 11 et seq.). 37 – Contested regulations (recital 1). 38 – Ibid. (recital 4). 39 – Ibid. 40 – Ibid. 41 – Contested regulations (recital 5). 42 – In his Opinion in Emesa Sugar Advocate General Ruiz-Jarabo Colomer observed that the consequences of application of the cumulation of origin rule were not foreseeable when the OCT Decision was adopted. According to him, ‘[the] fiction upon which the cumulation of origin rules are based was adopted at the time by the Council without its being entirely aware – and it probably could not have been aware – of the consequences which it could entail’ (point 58). 43 – See the responses in Cases C-40/03 P, paragraph 39, and C-14/03 P, paragraph 45. 44 – Judgment in Rica Foods III, paragraph 128, emphasis added. 45 – Paragraph 56, emphasis added. 46 – Statistics compiled by Eurostat for exports, from the OCTs to the Community, of products falling within CN codes 1806 10 30, 1806 10 90 and 1701 for the years 1991-2000 (Annex 1 to the Kingdom of Spain’s statement in intervention in Case T-94/00). 47 – Ibid. 48 – Paragraph 112. In fact, the issue of the room for manoeuvre left by the WTO Agreements was considered by the Court of First Instance in paragraphs 135 to 139 of the judgment in Rica Foods II. However, even assuming that Rica Foods’ appeal can be understood as referring to those latter points, rather than to paragraphs 112 to 115 of the judgment in Rica Foods II which are expressly mentioned in the appeal, I think that Rica Foods’ line of argument would, in any event, be unfounded for the reasons which I have set out in my Opinion today in Cases C-26/00, C‑180/00 and C-452/00 Netherlands v Commission, points 76 to 79. 49 – See Rica Foods II, paragraphs 157 to 197, and Rica Foods III, paragraphs 142 to 177. 50 – See, as recent examples, Case C-234/02 P European Ombudsman v Lamberts [2004] ECR I‑2803, paragraph 76, and order of 28 October 2004 in Case C-236/03 P Commission v CMA CGM and Others not published in the ECR, paragraph 43. 51 – Appeals in Cases C-40/03 P, paragraph 66, and C-41/03 P, paragraph 72. 52 – Appeals in Cases C-40/03 P, paragraph 68, and C-41/03 P, paragraph 74. 53 – See points 85 to 88 of this Opinion. 54 – Judgment in Rica Foods II. 55 – Appeals in Cases C-40/03 P, paragraph 88, and C-41/03 P, paragraph 99.