Opinion of the Advocate General — ECLI:EU:C:1998:168
Date: 1998-04-28
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Association Agreement;External relations;Overseas countries and territories;Rice
Procedure: Action for annulment;Appeal - unfounded
Origin: Provisional data;Aruba;Netherlands Antilles

Summary of the Judgment
1. Appeals — Intervention — Status as intervener, acquired during the proceedings before the
Court of First Instance, retained before the Court of Justice — Pleas which may be raised by
an intervener in response to the appeal
(EC Statute of the Court of Justice, Art. 49, second para.; Rules of Procedure of the Court of
Justice, Art. 115)
2. Actions for annulment of measures — Natural or legal persons — Measures of direct and
individual concern to them — Commission decision addressed to the Member States intro­
ducing a safeguard measure
(EC Treaty, Art. 173, fourth para.)
3. Appeals — Pleas in law — Incorrect assessment of the facts — Inadmissible — Appeal dis­
missed
(EC Treaty, Art. 168a; EC Statute of the Court of Justice, Art. 51)
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SUMMARY — CASE C-390/95 P
4. Association of the overseas countries and territories — Implementation by the Council — Pres­
ervation of Community interests by inserting a safeguard clause in the arrangements giving
free access to the Community market for agricultural products originating in the associated
countries and territories — Lawful
(EC Treaty, Arts 3(r), 131, 132, 133(1) and 136, second para.)
5. Association of the overseas countries and territories — Safeguard measures vis-à-vis imports of
agricultural products originating in the associated countries and territories — Conditions for
introduction — Discretion of the Commission
(Council Decision 91/482, Art. 109)
6. Association of the overseas countries and territories — Safeguard measures vis-à-vis imports of
agricultural products originating in the associated countries and territories — Product origi­
nating in the Netheriands Antilles placed in an unfavourable competitive position in relation
to the Community product — Principle of proportionality — Breach — None
(Commission Decision 93/211)
7. Non-contractual liability — Conditions — Legislative measure involving choices of economic
policy — Sufficiently serious breach of a superior rule of law for the protection of the individual
— Measure in the form of a decision and of individual concern to the applicant — No bearing
on the legislative character of the measure in respect of which the action for damages is brought
(EC Treaty, Arts 178 and 215, second para.)
1. It follows from Article 49 of the Statute of
the Court of Justice that interveners before
the Court of First Instance are regarded as
parties before that court. Consequently, if
an appeal is brought against that court's
judgment, Article 115(1) of the Rules of
Procedure of the Court of Justice applies
to them, so that they are dispensed from
having to make a fresh application to inter­
vene before the Court of Justice under
Articles 93 and 123 of the Rules of Pro­
cedure.
Since no distinction is made, as regards
the pleas they may raise in an appeal,
between the parties who are entitled to
lodge a response, an intervener who is so
entitled must be able to raise pleas relating
to any point of law on which the con­
tested judgment is based. Such a party may
therefore plead before the Court of Justice
that the application was inadmissible,
despite the fact that the party it supported
before the Court of First Instance, which
raised that plea at first instance, has not
repeated it in its response to the appeal.
2. The judicial protection which an indi­
vidual enjoys under the fourth paragraph
of Article 173 of the Treaty cannot depend
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ANTILLEAN RICE MILLS AND OTHERS v COMMISSION
on whether the contested decision is
addressed to one Member State or to sev­
eral, but must be established on the basis
of the specific situation of that individual
compared to all other persons concerned.
More particularly, in the case of a decision
introducing a safeguard measure, what
matters for identifying the persons indi­
vidually concerned by that decision is the
protection enjoyed under Community law
by the country or territory, and by the
undertakings concerned, against which the
safeguard measure is adopted.
3. The Court of First Instance has exclusive
jurisdiction to find the facts, save where a
substantive inaccuracy in its findings is
attributable to the documents submitted
to it, and to appraise those facts. That
appraisal thus does not, save where the
clear sense of the evidence has been dis­
torted, constitute a point of law which is
subject, as such, to review by the Court of
Justice in the context of an appeal.
4. The adoption by the Community of a
safeguard clause authorising restrictions
on the freedom to import agricultural
products originating in the overseas coun­
tries and territories (OCTs) is not excluded
in the context of the second paragraph of
Article 136 of the Treaty.
First, although the OCTs are associated
countries and territories which have spe­
cial links with the Community, they do
not form part of the Community, and free
movement of goods between the OCTs
and the Community does not exist unre­
strictedly at this stage, in accordance with
Article 132 of the Treaty.
Second, when the Council adopts deci­
sions concerning the OCTs under the
second paragraph of Article 136, which
authorises it to adopt decisions concerning
the association on the basis of the prin­
ciples set out in the Treaty, it must take
account not only of the principles in Part
Four of the Treaty on the OCTs but also
of the other principles of Community law,
including those relating to the common
agricultural policy.
Moreover, the promotion by the Commu­
nity of the economic and social develop­
ment of the OCTs, which is provided for
by Article 3(r) and Article 131 of the
Treaty, does not imply an obligation to
give them privileged treatment, and the
abolition of customs duties on entry into
the Community of products originating in
the OCTs, provided for by Article 133(1)
of the Treaty, does not exclude the possi­
bility of adopting, on the basis of the
second paragraph of Article 136, a safe­
guard clause which limits imports only
exceptionally, partially and temporarily.
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SUMMARY — CASE C-390/95 P
5. The Commission has a wide discretion in
the application of Article 109 of Decision
91/482 on the association of the overseas
countries and territories, which empowers
it to take or authorise safeguard measures
where certain conditions are met. In' cases
involving such a discretion, the Court of
First Instance must restrict itself to con­
sidering whether the exercise of that dis­
cretion contains a manifest error or con­
stitutes a misuse of power or whether the
Commission clearly exceeded the bounds
of its discretion.
6. The objective of Decision 93/211, by which
the Commission reduced the minimum
import price for rice originating in the
Netherlands Antilles which it had imposed
as a safeguard measure by Decision 93/127
to a level such that the rice in question
was no longer in an unfavourable position
in relation to rice from non-member coun­
tries, is to fix a threshold price for imports
of Antillean rice which least disturbs the
functioning of the association of the OCTs
with the Community, while remedying the
difficulties which have appeared on the
Community market. Having regard to that
objective, in so far as the decision places
Antillean rice in an unfavourable competi­
tive position in relation to Community
rice, it is not contrary to the principle of
proportionality, since it follows from the
very essence of a safeguard measure that
some imported products will be subjected
to rules which are unfavourable in com­
parison with Community products.
7. In a legislative context involving the exer­
cise of a wide discretion, a breach of Com­
munity law by an institution is not in itself
sufficient for the non-contractual liability
of the Community to be incurred, under
the second paragraph of Article 215 of the
Treaty, in respect of damage suffered by
individuals. Such liability cannot be
incurred unless the institution concerned
has manifestly and gravely disregarded the
limits on the exercise of its powers.
Moreover, that a measure which is chal­
lenged in an action for damages is legisla­
tive in character is not excluded by the
fact that it is in the form of a decision and
hence in principle capable of being the
subject of an action for annulment, nor by
the fact that the applicant is individually
concerned by the measure, since the leg­
islative character of a measure depends on
its nature, not its form, and an action for
damages is an independent remedy.
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