Opinion of the Advocate General — ECLI:EU:C:2017:348
Date: 2017-05-04
Language of the case: French
Subject matter: Agriculture and Fisheries;Eggs and poultry
Procedure: Action for annulment - successful;Appeal - successful
Origin: France

summary manner, for example by a reference to previous decisions or other measures, the EU authority must give an explicit account of its reasoning where a given measure goes appreciably further than the previous measures. (44) 87. The grievance submitted by the appellant concerns precisely that. Tilly-Sabco argues that in setting the amount of export refunds at nil, the Commission could not simply ‘recycle’ the reasons given in a previous regulation, as the contested regulation went appreciably further than the previous ones, which the General Court failed to appreciate. It argues that the General Court misapplied the line of case-law mentioned in the previous point. 88. And yet the General Court did no such thing. 89. In paragraphs 223 to 231 of the judgment under appeal, the General Court correctly recalled the case-law referred to in point 86 above. After having first requested the Commission to detail its practice at the material time (paragraphs 235 to 241 thereof), in accordance with which the Commission set the amount of refund on the basis of two independent methods, namely (i) the theoretical calculation and (ii) an analysis of the situation of the market (‘the market analysis’), the General Court then went on to reject the appellant’s arguments that the Commission had departed from that practice (paragraphs 242 to 262 thereof). 90. And the General Court was right to do so. 91. Indeed, at first instance, the appellant did not claim that the Commission had not followed its usual practice from a procedural point of view (see paragraph 242 of the judgment under appeal). (45) It was the substantive modification brought about by the contested regulation which the appellant considered to depart from the Commission’s practice at the material time. 92. However, the General Court was clearly right to dismiss that view, as the reasons which led the Court, in Silos, to invalidate the regulation at issue in that case are manifestly not present in this one. In that judgment, the Court identified three separate grounds which, taken together, led it to conclude that the Commission had departed from its usual practice and, hence, that the reasons given were insufficient: (46) 93. First, the regulation which preceded the one challenged in that case had increased the amount of refunds for the feedstuffs at issue, whereas the regulation at issue in that case had lowered it. 94. Second, the amount of refunds was reduced — in one fell swoop — from ECU 74.93 per tonne to nil. 95. Third, the regulation at issue in that case was adopted only one week after the one previously applicable. 96. By contrast, as noted in paragraphs 8 to 11 of the judgment under appeal, the amount of refund for the frozen poultrymeat products concerned was gradually reduced — without being temporarily increased — over a three-year period, from an initial amount of EUR 40 per 100 kg on 17 June 2010 to EUR 32.50 per 100 kg, then EUR 21.70 per 100 kg, then EUR 10.85 per 100 kg, before being fixed at zero on 18 July 2013 by the contested regulation. The contested regulation was adopted three months after the one previously applicable; a length of time explicitly envisaged by Article 164(2) of Regulation No 1234/2007. Those facts are undisputed. 97. It therefore is clear that the contested regulation formed part, within the framework of Regulations No 1234/2007 and No 182/2011, of a uniform procedure which had been consistently repeated, in which the regulations issued were adopted on the basis of explicit criteria mentioned in Regulation No 1234/2007 and with which the trade circles were perfectly familiar. Moreover, the content of the contested regulation does not differ to an appreciable extent from its predecessors. That is akin to the situation in Delacre. (47) 98. The fact that the contested regulation set the amount of refund at nil without providing for reasons different from the previous regulation does not alter this. In addition to what I have stated above at point 77 regarding the lawfulness of it being possible for the Commission to set the amount of export refunds at nil, the reduction brought about by the contested regulation merely followed the same trend of lowering the amount of export refunds. To hold otherwise would lead to the absurd conclusion that the duty to give reasons would have been complied with if the Commission had instead proposed to set the amount of refunds at EUR 0.01 per 100 kg. The General Court therefore did not err when it stated, in paragraph 245 of the judgment under appeal, that the sole fact that the amount of export refunds was set at zero does not automatically mean that the Commission broke with its previous practice, and that a change to those amounts is inherent in the system of periodical setting of those amounts, so that the same line of reasoning may cover amounts which are very different and also an amount set at zero. The appellant’s reference to the judgment in National Iranian Oil Company, (48) which essentially replicates the case-law stated above at point 86 within the area of asset-freezing measures, does not show that the contested regulation went substantially further than its predecessors. 99. It follows from the above that Tilly-Sabco’s arguments that the General Court misinterpreted Article 296 TFEU must be dismissed. (b) Contradictory statements and other arguments 100. First, the alleged contradiction and distortion of the evidence, which the appellant claims is apparent from paragraphs 320 and 321 of the judgment under appeal, is without merit. The fact that the General Court held, on the one hand, that imports increased faster than exports and, on the other hand, that the value of imports dwindled, are not mutually contradictory statements, nor does it amount in any way to distortion of the evidence. In that respect, the appellant fails to indicate precisely the evidence alleged to have been distorted by the General Court and to show the errors of appraisal which led to such a distortion. (49) 101. Second, as for paragraphs 253 to 255 of the judgment under appeal, which Tilly-Sabco argues are contradictory in view of the politically motivated gradual reduction of the amount of export refunds, no tension between those two statements arises on any reading, regardless of the merits of Tilly-Sabco’s theory. 102. Third, the appellant is wrong to criticise the General Court for failing to hold, in paragraph 259 of the judgment under appeal, that the amount of export refunds was set on account of a commitment undertaken at the international level. The fact that the Commission stated, in its defence before the General Court, that the ‘evolution of the [common agricultural policy] takes account of the ongoing negotiations within the Doha development round of the World Trade Organisation [“WTO”] and the position taken by the Union in that context in relation to refunds’, in no way refers to any specific international obligation. 103. Lastly, I detect no contradiction between paragraphs 53 and 54 of the judgment under appeal, which recognise that exporters will not apply for export refunds if the applicable rate has been set at EUR 0 and, on the other hand, its paragraphs 267 and 268, which do not rule out the possibility for national authorities of granting export refunds for an amount of EUR 0, even though no applications will in all likelihood be submitted. Indeed, Tilly-Sabco’s reading of those passages omits to take account of their context: in paragraphs 53 and 54, the General Court was considering whether the contested regulation ‘entailed’ implementing measures for the purpose of verifying the appellant’s legal standing under the fourth paragraph of Article 263 TFEU. In paragraphs 267 and 268 however, the analysis was entirely different: namely whether Article 164(2) of Regulation No 1234/2007 permitted the setting of export refunds at zero. If the two things were as intertwined as the appellant suggests is the case, then it is doubtful that the appellant would have had standing to bring these proceedings. 104. It follows from all the above that the appellant’s arguments that the General Court contradicted itself, distorted the facts and misinterpreted the Commission’s written submission must be dismissed. (c) Improper lowering of the standard of judicial review 105. The General Court correctly identified the applicable standard for judicial review in paragraph 276 of the judgment under appeal: namely, that the EU legislature enjoys a wide discretion in matters concerning agriculture. Such is the case as regards the choice of whether to carry out a revision of the rules in force concerning frozen chickens. Consequently, judicial review 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. (50) 106. The appellant does not challenge the judgment under appeal for failing to identify the correct standard for judicial review. It does not challenge that judgment either for applying covertly a standard less favourable to it, (51) or because the standard applied breaches Article 47 of the Charter. Rather, it seems that Tilly-Sabco essentially challenges the interpretation given by the General Court of the scope of the Commission’s discretion under Article 164 of Regulation No 1234/2007. As the Commission points out, this part of the third ground appears to be an emanation of the general disagreement between the parties on the purpose of export refunds. 107. In that regard, I should call to mind that the system of export refunds is intended to produce stability in the common market and to ensure that agricultural products can be sold to non-EU countries. (52) In particular, export refunds do not serve to ensure exporters a decent income. Rather, their purpose is to enable swift and effective advance intervention in a rapidly changing market. Furthermore, frequent change is a central characteristic of the system of EU agricultural law, and legislation must constantly be adapted to changing economic circumstances and changing policy priorities. (53) 108. In my view, the General Court was correct to hold, in paragraph 293 of the judgment under appeal, that, given the use of the terms ‘one or more’ in Article 164(3) of Regulation No 1234/2007, the Commission may place emphasis on one of the aspects listed in that provision. The Commission may even lawfully limit itself to only one aspect. In this case, the General Court held, at paragraph 291 of its judgment, that the Commission had placed emphasis on the need to ensure equilibrium and the natural development of prices and trade on the market, mentioned in Article 164(3)(b) thereof. (54) 109. Contrary to what the appellant argues, that finding is not at odds with paragraph 401 (55) of the judgment under appeal. Indeed, the General Court did not say there that the aspects listed in Article 164(3) of Regulation No 1234/2007 carried equal weight. What the General Court did was to respond to the appellant’s argument that the Commission contradicted itself when claiming to afford equal importance to the theoretical calculation and the market analysis methods yet placed, in the final analysis, more emphasis on the latter. However, those two methods are not ‘aspects’ within the meaning of Article 164(3) of Regulation No 1234/2007, but rather tools for setting the appropriate amount of export refunds. The appellant therefore misconstrues the judgment under appeal. 110. As it stands, the remaining arguments contained in this part of the third ground of appeal are, in so far as they are intelligible and admissible, based on a series of misunderstandings and/or misrepresentations of that judgment. 111. First, in paragraph 401 of the judgment under appeal, the General Court did rule on the appellant’s argument mentioned in paragraph 400 thereof. That finding represents the view of that court, and hence cannot amount to distortion of the position of the parties. In any event, the appellant has not argued that the General Court ruled ultra petita. 112. Second, the appellant is plainly incorrect when it states that the General Court held, in paragraph 300 of the judgment under appeal, that ‘the theoretical calculation of the amount of refunds is not explained by the documents submitted to the Management Committee’. (56) 113. Lastly, the contention that the General Court erred in not requiring the Commission to provide it with the theoretical calculation, and therefore could not consider whether the balance struck between the Commission’s theoretical calculation and its market analysis amounted to a manifest error of assessment, is wrong. In the first place, it is not for the parties, but for the General Court, to decide to adopt measures of organisation of the procedure and/or of inquiry if it considers it necessary. (57) In the second place, in paragraph 398 of the judgment under appeal, the General Court held that, as recognised by the Commission, although the theoretical calculation had produced a positive result, the Commission could lawfully set the amount of export refunds at nil on account of the factors set out in paragraph 292 of that judgment. (58) Hence, even without details on the theoretical calculation, the General Court was able to consider the difference between the two methods. In the last place, the appellant’s view amounts, in essence, to asking the General Court to exercise the discretion which Regulation No 1234/2007 instead confers upon the Commission. 114. It follows that this part of the third ground of appeal must be dismissed and so, consequently, must that ground in its entirety. E. Fourth ground of appeal: infringement of Article 164(3) of Regulation No 1234/2007 or manifest error of assessment 1. Arguments of the parties 115. Tilly-Sabco argues, in the first part of the fourth ground of appeal, that the General Court contradicted itself when reviewing whether the Commission had taken due account of the aspects listed in Article 164(3) of Regulation No 1234/2007, in that the General Court compared a decline in prices in the United States of America in 2013, in paragraph 301 of the judgment under appeal, with the market situation in Brazil from 2009 to 2013 in paragraph 302 thereof, and that the General Court ought to have considered the latest data available. 116. In the second part of the fourth ground of appeal, the appellant claims that the General Court breached Article 164(3)(b) of Regulation No 1234/2007 by upholding, in paragraph 289 of the judgment under appeal, the Commission’s assessment that the difference in prices as compared to poultry originating from Brazil did not require payment of export refunds. Moreover, in its view, the General Court also breached that provision by limiting its review to the world market without taking the EU market into consideration. 117. In the third part of that ground of appeal, Tilly-Sabco alleges that the General Court failed, at paragraph 366 of the judgment under appeal, to censure the Commission for not taking into account the exact state of demand for chicken, and that it contradicted itself at paragraph 368 thereof. Moreover, Tilly-Sabco argues that the General Court failed, in paragraph 350 et seq. of that judgment, to draw the conclusions from the price increase in animal foodstuffs on the margins of the producers. It criticises that court for similarly failing to draw the consequences of the errors committed by the Commission, identified at paragraphs 350 to 356 and 360 and 361 thereof, and for distorting the evidence at paragraph 369 of that judgment, which it claims showed a downward trend for demand for poultrymeat in 2013. 118. The Commission contests those arguments. 2. Assessment 119. The three parts of this ground of appeal contain what is essentially a series of different critiques of the review conducted by the General Court of the Commission’s exercise of its discretion under Article 164(3) of Regulation No 1234/2007. I consider none of them to be justified and shall deal with them successively. 120. To begin with, the contradiction which Tilly-Sabco argues arises between paragraphs 300 and 301 of the judgment under appeal is not there: the fact that, when considering the evolution in prices of fresh chicken, the General Court took account only of the year 2013 for the United States of America does not mean that it contradicted itself by taking a broader period into account as regards Brazil. Nothing in the wording of Article 164(3) of Regulation No 1234/2007 requires the Commission to limit its comparative assessment of price evolutions to specific periods (even though it would arguably defeat the purpose of a comparison not to do so). Although the appellant is correct to point out that Article 164(3)(a) thereof refers to the ‘existing situation’ on the EU and world markets, as stated above at point 108, the Commission may place special emphasis on other aspects listed in Article 164(3) thereof, which the General Court concluded that it had in this case. In any event, paragraphs 300 and 301 of the judgment under appeal are not contradictory, as the General Court held in both paragraphs that the decline in prices in those countries only occurred at the end of 2013. 121. Next, Tilly-Sabco’s argument that the General Court failed to hold that the Commission made a manifest error of assessment by not setting export refunds in the light of the estimated difference in price, recognised in paragraph 289 of the judgment under appeal, between the prices of chicken on the internal market and poultry originating in Brazil of EUR 44.73 per 100 kg, must be dismissed. That difference in price might stem from the fact that the compared products were not poultry from both regions but rather chicken and poultry. Also, Tilly-Sabco fails to state that in that same paragraph, the Commission pointed out that the prices for chicken on the internal market were high. (59) That led the General Court to rule, in paragraph 292, that the Commission could lawfully consider that it was not necessary to set export refunds of a positive amount in order to ensure the stability of the market — a paragraph which the appellant does not contest. And rightly so: as mentioned above at point 107, export refunds do not serve to ensure exporters a decent income. Accordingly, traders cannot require the Commission to set the level of refunds at a particular amount. 122. As for the argument that the General Court breached Article 164(3)(b) of Regulation No 1234/2007 by limiting its assessment to one market, whether it be the internal market or the world market, (60) those two markets are mentioned only in subparagraphs (a) and (i). However, the General Court held that the Commission afforded particular weight to subparagraph (b), which does not refer to those two markets. (61) 123. Turning to the third part of the fourth ground of appeal, I consider the appellant to be wrong to argue that the General Court failed to grasp, at paragraph 366 of the judgment under appeal, that Article 164(3) of Regulation No 1234/2007 requires the Commission to know the exact state of the evolution in demand for chicken on the EU and world markets. On the contrary, the General Court was correct to hold that the price is the meeting point between offer and demand, and that an analysis of the evolution in prices necessarily takes account of demand. Moreover, as for the appellant’s counterargument that an increase in price reflects an imbalance in the evolution in offer and/or demand, prices may very well incorporate a planned evolution of offer and demand. That argument must therefore be dismissed, and so must the alleged contradiction between paragraphs 366 and 368 of the judgment under appeal, which only arises if the appellant’s view of the correlation between price and demand is accepted. 124. Next, the appellant’s argument that the General Court failed, in paragraph 350 et seq. of the judgment under appeal, to draw the appropriate conclusions from the price increase in animal foodstuffs on the margins of the producers is baseless: in paragraph 351, the General Court does exactly that. 125. In the penultimate place, the appellant’s argument that paragraphs 350 to 356 and 360 and 361 of the judgment under appeal arguably show that the Commission presented the General Court with information different from that which it gave the Management Committee, cannot affect the lawfulness of the contested regulation, which must be assessed not on the basis of what the Commission presented to the General Court, but on the facts and the law as they stood at the time when that regulation was adopted. That argument is therefore ineffective. The same is true for the fact that the General Court held it necessary, in paragraph 360 of the judgment under appeal, to nuance the statements made in the Commission’s defence concerning the prices of foodstuffs. In any event, the irrelevance of those circumstances is confirmed by the fact that, as stated by the Commission, the appellant has not challenged the second and third sentences of paragraph 361 of that judgment, which inter alia held that the issue of when foodstuffs became more expensive was not decisive. 126. Lastly, regarding the claim that the General Court distorted the evidence at paragraph 369 of the judgment under appeal by considering that the Commission had taken account, in particular, of an increase in demand for chicken, that paragraph merely reproduces the view of the appellant and does not purport to establish the facts. Hence, it cannot contain that alleged distortion. As for the appellant’s critique of paragraph 371 of that judgment, which the appellant links to its allegation of distortion of the evidence in paragraph 369 thereof, the appellant fails to prove that the General Court distorted that evidence or erred in law in that paragraph. As the Commission rightly observes, the appellant does not challenge paragraph 370 of the judgment under appeal, where the General Court held that the appellant’s contentions relating to a slowdown in the increase of the production and consumption of poultrymeat meant that an increase in the production and demand still existed, as well as an expectation of production growth, although at a lower rate than before. 127. This last ground of appeal is unfounded and must therefore be rejected. In consequence, so must the appeal in its entirety. VI. Conclusion 128. In light of the foregoing considerations, I propose that the Court should dismiss the appeal, and order the appellant to bear the costs. 1 Original language: English. 2 Judgment of 14 January 2016, Tilly-Sabco v Commission, T-397/13, EU:T:2016:8 (‘the judgment under appeal’). 3 Commission Implementing Regulation of 18 July 2013 fixing the export refunds on poultrymeat (OJ 2013 L 196, p. 13) (‘the contested regulation’). 4 Regulation of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13). 5 Council Regulation of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2007 L 299, p. 1), as modified. 6 Council Decision of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23). 7 Commission Regulation of 17 June 2010 fixing the export refunds on poultrymeat (OJ 2010 L 152, p. 5). 8 Commission Implementing Regulation of 18 October 2012 fixing the export refunds on poultrymeat (OJ 2012 L 288 p. 6). 9 Commission Implementing Regulation of 17 January 2013 fixing the export refunds on poultrymeat (OJ 2013 L 14, p. 15). 10 Commission Implementing Regulation of 18 April 2013 fixing the export refunds on poultrymeat (OJ 2013 L 109, p. 27). 11 Commission Implementing Regulation of 20 October 2011 fixing the export refunds on poultrymeat (OJ 2011 L 276, p. 31). 12 Order of 26 September 2013, Tilly-Sabco v Commission, T‑397/13 R, not published, EU:T:2013:502. 13 Judgment of 14 January 2016, Doux v Commission, T‑434/13, not published, EU:T:2016:7. 14 Judgment of 14 January 2016, France v Commission, T‑549/13, EU:T:2016:6. 15 See paragraphs 39 to 68 of the judgment under appeal. 16 See paragraph 27 of the judgment under appeal. Specifically, the Commission neither challenged the notion that the contested regulation was a regulatory act nor that the appellant was directly affected by it, see paragraphs 33 and 38 thereof. 17 Under Article 150 of the Rules of Procedure of the Court of Justice, applicable to the appeal procedure by virtue of Article 190(1) thereof, ‘the Court may at any time of its own motion … decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case’ (emphasis added); see also judgment of 27 February 2014, Stichting Woonlinie and Others v Commission, C‑133/12 P, EU:C:2014:105, paragraph 32. The question whether a challenged measure ‘entails’ implementing measures for the purpose of the fourth paragraph of Article 263 TFEU is currently the subject of appeals pending before the Grand Chamber of the Court; see Cases C‑244/16, Industrias Químicas del Vallés v Commission, and C‑384/16 P, European Union Copper Task Force v Commission. 18 Standard rules of procedure — Council Decision 1999/468/EC — Rules of procedure for the … committee (OJ 2001 C 38, p. 3, footnote 6). 19 The Management Committee’s rules of procedure were submitted by the Commission in the proceedings at first instance as annex to its defence. 20 Article 127(1) of the Rules of Procedure of the Court of Justice, applicable to the appeal procedure by virtue of Article 190(1) thereof. At any rate, the Standard rules of procedure are not relevant if the committee in question has adopted its own rules of procedure, as is the case here, see judgment of 25 October 2005, Germany and Denmark v Commission, C‑465/02 and C‑466/02, EU:C:2005:636, paragraph 31. 21 Article 8(5) of Regulation No 182/2011 (‘Immediately applicable implementing acts’) provides: ‘where the Commission adopts provisional anti-dumping or countervailing measures, the procedure provided for in this Article shall apply. The Commission shall adopt such measures after consulting or, in cases of extreme urgency, after informing the Member States. In the latter case, consultations shall take place 10 days at the latest after notification to the Member States of the measures adopted by the Commission’ (emphasis added). See also recital 16 of the regulation. 22 See recitals 5 and 11 of Regulation No 182/2011. 23 See, as examples thereof, judgments of 14 January 1987, Germany v Commission, 278/84, EU:C:1987:2, paragraph 12 to 16; and of 10 February 1998, Germany v Commission, C‑263/95, EU:C:1998:47, paragraphs 26 to 32. 24 Judgment of 23 February 1988, United Kingdom v Council, 68/86, EU:C:1988:85, paragraph 48. 25 Judgments of 7 May 1991, Nakajima v Council, C‑69/89, EU:C:1991:186, paragraphs 49 and 50, and of 13 September 2007, Common Market Fertilizers v Commission, C‑443/05 P, EU:C:2007:511, paragraph 145. 26 Judgments of 15 June 1994, Commission v BASF and Others, C‑137/92 P, EU:C:1994:247, paragraphs 76 and 77, and of 13 September 2007, Common Market Fertilizers v Commission, C‑443/05 P, EU:C:2007:511, paragraph 147 and 148. 27 Compare in that regard with the judgment of 15 June 1994, Commission v BASF and Others, C‑137/92 P, EU:C:1994:247, paragraph 72. 28 For a criticism of the lack of rights of private individuals in the comitology procedure, see the Opinion of Advocate General Geelhoed in Joined Cases Alliance for Natural Health and Others, C‑154/04 and C‑155/04, EU:C:2005:199, points 80 to 85. The Court did not invalidate the measure at issue in that case; see judgment of 12 July 2005, Alliance for Natural Health and Others, C‑154/04 and C‑155/04, EU:C:2005:449, paragraphs 81 and 82. 29 See, by analogy, judgment of 11 January 2001, Monte Arcosu, C‑403/98, EU:C:2001:6, paragraphs 26 and 28. 30 See judgment of 14 January 1987, Germany v Commission, 278/84, EU:C:1987:2, paragraph 13. See also, regarding the standard of judicial review regarding the existence of a risk of a disturbance in trade in agricultural products, the judgment of 25 January 1979, Racke, 98/78, EU:C:1979:14, paragraphs 4 and 5. 31 See judgment of 14 January 2016, France v Commission, T‑549/13, EU:T:2016:6, paragraph 18. 32 See, by analogy, judgment of 15 March 2006, Italy v Commission, T‑226/04, not published, EU:T:2006:85, paragraphs 38 to 41. 33 See, in that regard, the judgment of 25 October 2005, Germany and Denmark v Commission, C‑465/02 and C‑466/02, EU:C:2005:636, paragraphs 36, 38 and 40, where the Court held that the fact that an invitation to a committee meeting was sent less than 14 days beforehand and that there was no German-language version of the two documents to be discussed at that meeting could not have had any effect on the measure ultimately adopted. 34 The revocation of an act of the institutions is an exceptional measure with retrospective effects and can therefore only be explicit; see, to that effect, judgment of 8 November 2001, Silos, C‑228/99, EU:C:2001:599, paragraph 19. 35 Judgment of 22 September 2016, Parliament v Council, C‑14/15 and C‑116/15, EU:C:2016:715, paragraph 48 and the case-law cited. 36 Summary drawn up on 22 October 2013 of the 435th meeting of the Management Committee for the Common Organisation of the Agricultural Markets of 17 October 2013, document No ARES REG agri.ddg2.c.4(2013) 3316233, point 9.1.1 (available at https://ec.europa.eu/agriculture/sites/agriculture/files/committees/cmo-management/2013/435.pdf). 37 In fact, apart from citing that provision in the initial part of the appeal, no mention is made of Article 162(1) of Regulation No 1234/2007 at any point in the part devoted to its legal arguments. While the appellant’s reply refers to that provision, it does so only in response to a preliminary point raised by the Commission in its response concerning the aim of the system of export refunds. 38 Judgment of 10 December 2013, Commission v Ireland and Others, C‑272/12 P, EU:C:2013:812, paragraph 28 and the case-law cited. 39 Judgment of 14 March 1973, Westzucker, 57/72, EU:C:1973:30, paragraph 8. Export refunds and denaturing of sugar have, in some respects, an identical function within the common organisation of the market; see Opinion of Advocate General Mayras in Westzucker, 57/72, EU:C:1973:20, point 2. 40 Judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 63; and of 10 March 2016, HeidelbergCement v Commission, C‑247/14 P, EU:C:2016:149, paragraph 16. 41 Judgments of 9 September 2004, Spain v Commission, C‑304/01, EU:C:2004:495, paragraph 51; and of 9 June 2016, Pesce and Others, C‑78/16 and C‑79/16, EU:C:2016:428, paragraph 89. 42 Judgments of 28 October 1982, Lion and Others, 292/81 and 293/81, EU:C:1982:375, paragraph 19; of 22 January 1986, Eridania zuccherifici nazionali and Others, 250/84, EU:C:1986:22, paragraph 38; and of 6 July 2000, Eridania, C‑289/97, EU:C:2000:363, paragraph 40. 43 Judgments of 1 December 1965, Schwarze, 16/65, EU:C:1965:117, p. 888; and of 4 February 1990, Delacre and Others v Commission, C‑350/88, EU:C:1990:71, paragraph 16. 44 To that effect, see judgments of 26 November 1975, Groupement des fabricants de papiers peints de Belgique and Others v Commission, 73/74, EU:C:1975:160, paragraph 31; of 4 February 1990, Delacre and Others v Commission, C‑350/88, EU:C:1990:71, paragraph 15; and of 8 November 2001, Silos, C‑228/99, EU:C:2001:599, paragraph 28. 45 That statement is not affected by the fact that, in its appeal, the appellant claims, in relation to the part of the second part of the third ground of appeal concerning the alleged improper lowering of the standard of judicial review, that the appellant had made clear that neither the appellant nor the General Court had an opportunity of verifying or challenging the specific elements of the Commission’s usual practice. 46 Judgment of 8 November 2001, Silos, C‑228/99, EU:C:2001:599, paragraph 29. 47 Judgment of 14 February 1990, Delacre and Others v Commission, C‑350/88, EU:C:1990:71, paragraphs 17 to 19. 48 Judgment of 1 March 2016, National Iranian Oil Company v Council, C‑440/14 P, EU:C:2016:128, paragraph 60 et seq. 49 See, among others, judgment of 30 November 2016, Commission v France and Orange, C‑486/15 P, EU:C:2016:912, paragraph 99 and the case-law cited. 50 Judgment of 30 June 2016, Lidl, C‑134/15, EU:C:2016:498, paragraph 47 and, to that effect, judgment of 9 March 2017, Doux, C‑141/15, EU:C:2017:188, paragraph 26. 51 As was the situation in the case giving rise to the Opinion of Advocate General Sharpston in KME Germany and Others v Commission, C‑272/09 P, EU:C:2011:63, see points 71 to 73. 52 Whereas recital 65 of Regulation No 1234/2007 states that ‘a single [EU] market involves a trading system at the external borders of the [Union]. That trading system should include import duties and export refunds and should, in principle, stabilise the [EU] market. The trading system should be based on the undertakings accepted under the Uruguay Round of multilateral trade negotiations’, its recital 77 states that ‘provisions for granting refunds on exports to third countries, based on the difference between prices within the [Union] and on the world market, and falling within the limits set by the [Union]’s commitments in the WTO, should serve to safeguard the [Union]’s participation in international trade in certain products falling within this Regulation. Subsidised exports should be subject to limits in terms of value and quantity’. 53 See the Opinion of Advocate General Geelhoed in Silos, C‑228/99, EU:C:2001:196, point 32, citing the judgment of 8 April 1992, Wagner, C‑94/91, EU:C:1992:181, paragraph 18. See also, to that effect, judgments of 14 March 1973, Westzucker, 57/72, EU:C:1973:30, paragraphs 6 and 8; of 26 January 1978, Union Malt and Others v Commission, 44/77 to 51/77, EU:C:1978:14, paragraphs 23 and 28 (regarding the special situation of export licences fixing the refund in advance); of 28 October 1982, Lion and Others, 292/81 and 293/81, EU:C:1982:375, paragraph 14; and of 9 March 2017, Doux, C‑141/15, EU:C:2017:188, paragraph 36. 54 While the Commission stated at the hearing that it had considered both aspects mentioned in Article 164(3)(a) and (b) of Regulation No 1234/2007, it did not object to the finding made at paragraph 291 of the judgment under appeal. 55 The reference in the appeal to paragraph 400 of the judgment under appeal seems erroneous, as that paragraph reproduces the view of the appellant. 56 In paragraph 300 of the judgment under appeal, the General Court stated that ‘the document submitted to the Management Committee is not designed for explaining the theoretical calculation of the amount of export refunds, but above all for presenting the global market situation’. 57 See, to that effect, order of 31 January 2017, Universal Protein Supplements v EUIPO, C‑485/16 P, not published, EU:C:2017:72, paragraph 15 and the case-law cited. 58 Paragraph 292 of the judgment under appeal states that an increase in price on the EU market, the existence of margins for EU producers greater than the historic average and an increase in exports are all elements which may, in principle, allow the Commission to consider, without committing a manifest error of assessment, that the situation on the EU market is stable and that it is not necessary to set export refunds at a positive amount in order to ensure the stability of the market. 59 Similarly, as stated by the Commission, the appellant does not challenge the finding made at paragraph 306 of the judgment under appeal that a document submitted to the Management Committee showed a clear upward trend in prices on the EU market in the long and short terms. 60 The appeal is incoherent on this point, stating that ‘the General Court only took account of the prices on the internal market, the high costs of foodstuffs and the devaluation of the Brazilian real; it therefore only based itself on the world market’. 61 That is confirmed by the other language versions of that provision. The use, in the French wording of Article 164(3)(b) of Regulation No 1234/2007, of the plural form (‘marchés’) is not meant to refer back to the EU and world markets mentioned in Article 164(3)(a) and (i), but rather to the common market organisation, which takes the plural in that language (‘organisation commune des marchés’).