Order — ECLI:EU:T:1998:190
Date: 1998-08-14
Language of the case: Dutch
Court formation: President of the Chamber
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Agriculture and Fisheries;Association Agreement;External relations;Overseas countries and territories;Sugar
Concepts: Application for interim measures: suspension of operation of the contested measure and other interim measures
Procedure: Action for annulment;Application for interim measures - unfounded;Application to intervene - successful

Summary of the Judgment 
1. Actions for annulment — Natural or legal persons — Measures of direct and 
individual concern to them — Council decision confining the application of the 
ACP/OCT cumulation of origin rule in respect of sugar from the OCTs — Action 
brought by an undertaking active in sugar processing in the OCTs — Inadmissible 
(EC Treaty, Art. 173, fourth para, (now, after amendment, Art. 230, fourth para., 
EC); Council Decision 97/803) 
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SUMMARY — CASE T-43/98 
2. Non-contractual liability — Conditions — Legislative measure involving choices of 
economic policy — Sufficiently serious breach of a superior rule of law for the 
protection of individuals 
(EC Treaty, Art. 215, second para, (now Art. 288, second para., EC)) 
3. Community law — Principles — Protection of legitimate expectations — Limits — 
Amendments to rules concerning the association of the overseas countries and 
territories — Discretionary power of the institutions — Obligation on the Council to 
take account of the situation of undertakings already active on the market — None 
(EC Treaty, Art. 132 (now Art. 183 EC) and Art. 136 (now, after amendment, 
Art. 187 EC); Council Decision No 91/482, Art. 240(3)) 
1. The action brought by a sugar business 
established in the overseas countries 
and territories against Decision 97/803 
amending at mid-term Decision 91/482 
on the association of the overseas 
countries and territories (OCTs), by 
which the Council confined the appli­
cation of the ACP/OCT cumulation of 
origin rule in respect of sugar from the 
OCTs, is inadmissible. 
For a measure of general application to 
be of individual concern to a natural or 
legal person, that person must be 
affected by the measure at issue by 
virtue of certain attributes which are 
peculiar to that person, or circum­
stances must exist in which that person 
is differentiated from all other persons. 
First, the fact that Decision 97/803 
affects the applicant's economic activ­
ity is not sufficient to differentiate it, 
within the meaning of the fourth para­
graph of Article 173 of the Treaty 
(now, after amendment, the fourth 
paragraph of Article 230 EC), from 
any other trader, since it is in an 
objectively determined situation com­
parable with that of any other under­
taking which might now or at some 
time in the future be established in one 
of the OCTs and which is or might 
become active on the sugar market. 
Second, while the fact that a Commu­
nity institution is, by virtue of specific 
provisions, under a duty to take 
account of the consequences of a 
measure which it envisages adopting 
for the situation of certain individuals 
is such as to distinguish them individu­
ally, the fact nevertheless remains that, 
at the time of the adoption of Decision 
97/803, which cannot be considered to 
be a safeguard measure falling within 
the scope of Article 109 of Decision 
91/482, the Council had no duty under 
Community law to take into considera­
tion the specific situation of the appli­
cant. 
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EMESA SUGAR v COUNCIL 
Third, the fact that the applicant has 
made investments and concluded sup­
ply contracts is referable to the eco­
nomic decision it has made in the light 
of its own commercial interests. Such a 
situation, which arises out of the nor­
mal activity of any undertaking active 
in sugar processing, is not capable of 
differentiating the applicant for the 
purposes of the fourth paragraph of 
Article 173 of the Treaty. 
Fourth, no provision of Community 
law required the Council, in reviewing 
the OCT Decision, to follow a proce­
dure during which the applicant would 
have the right to be heard. Lastly, the 
fact that the contested decision escaped 
all democratic scrutiny cannot give rise 
to non-application of the rules for 
admissibility laid down in the fourth 
paragraph of Article 173 of the Treaty. 
(see paras 49-50, 52-56) 
2. As regards the non-contractual liability 
of the Community, a right to repara­
tion is acknowledged where three 
cumulative conditions are met: the rule 
of law infringed must be intended to 
confer rights on individuals; the breach 
must be sufficiently serious, and there 
must be a direct causal link between 
the breach of the obligation resting on 
the Community and the damage sus­
tained by the injured parties. Infringe­
ment of Article 190 of the Treaty (now 
Article 253 EC) is not sufficient for the 
Community to incur non-contractual 
liability. By contrast, the principle of 
proportionality and the principle of 
protection of legitimate expectations 
do constitute rules of law conferring 
rights on individuals. 
(see paras 59, 63-64) 
3. The Council, which has a broad dis­
cretion when weighing the objectives of 
the association of the overseas coun­
tries and territories (OCTs) against 
those of the common agricultural pol­
icy is entitled to reduce or even remove 
an advantage previously granted to the 
OCTs where its application is liable to 
lead to significant disturbances in the 
functioning of a common market orga­
nisation. Whilst the protection of legit­
imate expectations is one of the funda­
mental principles of the Community, 
traders cannot have a legitimate expec­
tation that an existing situation which 
is capable of being altered by the 
Community institutions in the exercise 
of their discretion will be maintained. 
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SUMMARY — CASE T-43/98 
A trader exercising due care ought 
therefore to have foreseen that Deci­
sion 91/482 on the association of the 
overseas countries and territories could 
be amended and that an amendment 
could, in some circumstances, mean the 
removal or restriction of advantages 
previously granted to the OCTs. That 
analysis is all the more inescapable as 
the advantages concerned are of an 
extraordinary nature. In addition, the 
Council was not required by any pro­
vision of Community law to take 
account of the interests of undertakings 
already present on the market. Arti­
cle 240(3) of Decision 91/482, which 
provides that, before the end of the first 
five years, the Council is to establish, 
where necessary, any amendments to 
be made to the provisions governing 
the association between the OCTs and 
the Community, cannot deprive the 
Council of its competence, conferred 
directly by the Treaty, to amend the 
acts which it has adopted under Arti­
cle 136 (now, after amendment, Arti­
cle 187 EC) thereof in order to attain 
all the objectives set out in Article 132 
of the Treaty (now Article 183 EC). 
(see paras 86-89) 
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