Opinion of the Advocate General — ECLI:EU:C:2012:106
Date: 2012-03-01
Language of the case: Polish
Subject matter: Agriculture and Fisheries
Procedure: Action for annulment;Appeal - unfounded;Appeal - inadmissible
Origin: Poland

Summary of the pleas put forward by the Republic of Poland 107. The Republic of Poland criticises the General Court for having rejected its arguments challenging Article 3 of Regulation No 1972/2003 and again puts forward five pleas in law. (i) The first plea in law: misinterpretation of Article 3 of Regulation No 1972/2003 108. Under this plea, the Republic of Poland claims that the General Court was wrong to find that Article 3 of Regulation No 1972/2003 was essential for the purposes of safeguarding the effectiveness of Article 4 of that regulation and that it could therefore be adopted on the basis of Article 41 of the Act of Accession. More specifically, it puts forward three sets of separate arguments. 109. First, it criticises the General Court for having held, in paragraph 194 of the judgment under appeal, that it had challenged only ‘the actual power of the Commission to require Member States to levy a charge on products subject to a suspensive regime located in their territory on 1 May 2004’ and not ‘the detailed arrangements for, or the proportionate nature of, that charge’, whereas its plea formally alleged the Commission’s lack of power and infringement of Articles 22 and 41 of the Act of Accession. The General Court thus failed to examine the proportionality of the charge introduced in Article 3 of Regulation No 1972/2003 and the specific rules that govern it. The Republic of Poland points out in this regard that Article 41 of the Act of Accession makes the adoption of transitional measures subject to the condition that they should be ‘necessary to facilitate the transition from the existing regime in the new Member States to that resulting from the application of the common agricultural policy’. Consequently, a measure which does not satisfy those requirements is not compatible either with Article 41 of the Act of Accession or with the principle of proportionality enshrined in that provision, with the result that there was no need to make a specific submission alleging infringement of the principle of proportionality. 110. Secondly, it contends that the General Court was wrong to take the view, in paragraphs 189 to 193 of the judgment under appeal, that Article 3 of Regulation No 1972/2003 was essential for the purposes of ensuring the effectiveness of Article 4 of that regulation. It recalls in this regard its submission in its reply at first instance to the effect that the customs duties provided for in Article 3 of Regulation No 1972/2003 could prevent speculation in relation to agricultural products, and therefore supplement the provisions of Article 4, concerning speculative surplus stocks of agricultural products, if they also applied to surplus quantities. In so far as the duties in Article 3 of Regulation No 1972/2003 apply to any quantity of products, there is therefore no logical link between those duties and the objectives pursued of combating speculation. 111. Thirdly and finally, the Republic of Poland argues that, in paragraph 186 of the judgment under appeal, the General Court held, in breach of the hierarchy of norms, that Article 3 of Regulation No 1972/2003 could be adopted on the basis of Article 41 of the Act of Accession. Article 3 of Regulation No 1972/2003, which derogates from Annex IV, Chapter 5, to the Act of Accession, is after all a unilateral and unlawful amendment of the conditions of accession. Although Article 41 of the Act of Accession authorises the Commission to take all necessary measures to facilitate the transition from the existing regime in the new Member States to that resulting from the application of the common agricultural policy, it does not authorise it to amend the content of the Act of Accession. (ii) The second plea in law: infringement of Article 253 EC 112. The Republic of Poland submits that, by rejecting its plea alleging an insufficient statement of reasons for Article 3 of Regulation No 1972/2003, the General Court infringed both the provisions of Article 253 EC and the case‑law of the Court of Justice interpreting that article. It points out in this regard that the General Court recognised, in paragraph 224 of the judgment under appeal, that none of the recitals in the preamble to Regulation No 1972/2003 expressly sets out the specific reasons which led the Commission to adopt the measures referred to in Article 3 of that regulation, and that the General Court therefore endeavoured to reconstruct that deficient statement of reasons (paragraphs 229 to 234 of the judgment under appeal). Starting from the incorrect premiss that the sole purpose of Article 3 of Regulation No 1972/2003 was to supplement the provisions of Article 4 of that regulation and to give it useful effect (paragraphs 231 to 233 of that judgment), the General Court concluded, wrongly, that Article 3 was covered by the statement of reasons given for Article 4 and did not require a separate statement of reasons (paragraph 234 thereof). 113. The Republic of Poland goes on to say that the obligation to state the reasons for Article 3 of Regulation No 1972/2003 should also have been assessed in the light of the interests of the traders required to bear the financial burdens introduced by that article. It states in this regard, with reference to paragraph 235 of the judgment under appeal, that the exchange of correspondence between the Polish Government and the Commission, which did not in any event relate to the reasons for the adoption of that provision, could not replace that obligation. (iii) The third plea in law: infringement of the principle of free movement of goods (Article 25 EC) 114. The Republic of Poland considers that the General Court infringed the principle of free movement of goods in finding that the transitional measures adopted on the basis of Article 41 of the Act of Accession were not subject to Article 25 EC (paragraphs 179 to 181 of the judgment under appeal). 115. It also submits that, taking into account the case‑law of the Court of Justice according to which the institutions of the European Union, like the Member States, are required to comply with the prohibition of customs duties and charges having an equivalent effect within the meaning of Article 25 EC, the General Court was not entitled to take the view, as it did in paragraph 181 of the judgment under appeal, that ‘the Republic of Poland cannot usefully invoke an infringement of the principle of free movement of goods and, in particular, of Article 25 EC in order to challenge the legality of the duties introduced by Article 3 of Regulation No 1972/2003’. (iv) The fourth plea in law: infringement of the principle of non-discrimination 116. The Republic of Poland claims that the General Court infringed the principle of non-discrimination by finding the difference in treatment between traders from the Republic of Poland and traders from the old Member States to be objectively justified. That difference lies in the fact that the erga omnes import duty is levied on products which had been released for free circulation in Poland prior to accession but were under a suspensive regime on the date of accession, whereas that duty was not levied on the same products which had been released for free circulation in the Community of Fifteen prior to accession and in respect of which no export refunds had been sought. 117. It points out that it is not disputing the application per se of different rules to traders in the old Member States and traders in the new Member States, but rather the application of different rules where there is no objective justification for such a difference. On the one hand, the Commission has in no way demonstrated that the risk of speculation resulted principally from flows of goods from Poland. On the other hand, even if such a risk did exist, it could have been averted simply by keeping the duties payable under the preferential regime applicable to the Republic of Poland prior to accession in force for a transitional period rather than imposing erga omnes duties at a higher rate. (v) The fifth plea in law: infringement of the principle of the protection of legitimate expectations 118. The Republic of Poland maintains that, in finding in paragraph 246 of the judgment under appeal that the Community did not create a situation giving rise to a legitimate expectation on its part or on the part of Polish traders, the General Court infringed the principle of the protection of legitimate expectations. It takes the view that derogations from the provisions of Annex IV, Chapter 5, to the Act of Accession, which constitute a source of legitimate expectations, could not be adopted on the basis of Article 41 of the Act of Accession. Normally diligent traders could not therefore be expected to assume that Article 41 of the Act of Accession was capable of providing the basis for such derogations. (b) Analysis 119. In order to give a suitable response to this set of pleas and complaints which the Republic of Poland has directed against the General Court’s assessment of the lawfulness of Article 3 of Regulation No 1972/2003, it must be borne in mind that those pleas and complaints are concerned generally with the question of what scope is to be attributed to the enabling provision contained in Article 41 of the Act of Accession. After all, in setting out its argument in this regard, the Republic of Poland formally submits that the General Court’s finding that Article 3 is lawful was in breach of the ‘hierarchy of norms’. In order to be able to evaluate that argument fully, we must begin by reminding ourselves of the content of the provisions at issue. 120. Article 3(1) and (2) of Regulation No 1972/2003 essentially provide that the scope of the charge introduced in Article 4 of that regulation is to be extended to agricultural products which were released for free circulation in the Community of Fifteen or in a new Member State prior to the date of accession and which, on the date of accession, were under a suspensive regime, in derogation from Annex IV, Chapter 5, to the Act of Accession, inter alia. Article 41 of the Act of Accession empowers the Commission to adopt, for a period of three years following the date of accession, the measures necessary to facilitate the transition from the existing regime in the new Member States to that resulting from the application of the common agricultural policy. 121. The challenge raised by the Republic of Poland is therefore directed primarily at the General Court’s assessment of the scope of the enabling provision contained in Article 41 of the Act of Accession. By adopting Article 3 of Regulation No 1972/2003, the Commission went beyond what it was empowered to do under Article 41 (41) and thus infringed that provision (hierarchy of norms). The General Court was therefore wrong to conclude that that provision authorised the derogation from the Act of Accession provided for in Article 3. 122. It is ultimately in this context that the Republic of Poland puts forward other pleas in law, in particular those alleging errors by the General Court in the assessment of its arguments as to an infringement of its powers by the Commission (42) and an infringement of the principle of free movement of goods. For, on the one hand, by going beyond what it was empowered to do under Article 41 of the Act of Accession, the Commission exceeded its powers. On the other hand, Article 41 does not empower the Commission to adopt provisions in breach of the principle of free movement of goods. 123. Finally, the complaints thus directed against Article 3 of Regulation No 1972/2003 and the assessment of its validity by the General Court are supplemented by a plea alleging a failure to state reasons, contrary to Article 253 EC, which is directly linked to those complaints. The Republic of Poland maintains, in essence, that the General Court committed an error of law in finding that Regulation No 1972/2003 was sufficiently reasoned, even though none of the recitals in its preamble sets out the reasons for the adoption, notwithstanding the provisions of Annex IV, Chapter 5, to the Act of Accession, of Article 3. 124. I am therefore of the opinion that, in order to respond to the pleas in law and arguments raised by the Republic of Poland in this appeal, it is necessary, first of all, to examine the compatibility of Article 3 of Regulation No 1972/2003 with the provisions of Article 41 of the Act of Accession, and the consequences of that examination for the other complaints, while at the same time analysing the complaint alleging failure to fulfil the duty to state reasons. 125. In this context, the argument put forward by the Republic of Poland raises two main issues which must each be examined in turn. First, does Article 3 of Regulation No 1972/2003 actually constitute a derogation from the Act of Accession and, if so, to what extent? Next, assuming that that is indeed the case, was the Commission empowered to adopt a provision of secondary law which derogated from a provision of primary law? More specifically, could the adoption of Article 3 of Regulation No 1972/2003 actually be regarded as being covered by Article 41 of the Act of Accession? An examination of those two issues will lead on naturally to an examination of the second plea in law alleging failure to fulfil the duty to state reasons. (i) Does Article 3 of Regulation No 1972/2003 derogate from primary law? 126. It must be pointed out first of all that Article 3 of Regulation No 1972/2003 itself expressly states, in paragraph 1, that it applies ‘by way of derogation’ from Annex IV, Chapter 5, to the Act of Accession and Articles 20 and 214 of Regulation No 2913/92. 127. Next, it is important to note that, far from disputing that statement, the Commission takes the view rather that Article 41 of the Act of Accession empowered it to adopt a derogatory provision of this kind. 128. Finally, it is not inappropriate to point out that this is what emerges from analysing the provisions in question. Annex IV, Chapter 5, to the Act of Accession provides that all goods originating in the old Member States (43) or which were imported into and placed in free circulation in those Member States prior to accession but which, on the date of accession, fell within one of the four situations listed, that is to say temporary storage, entry into a free zone or free warehouse, subjection to one of the suspensive customs regimes referred to in Article 4(16)(b) to (g) of Regulation No 2913/92 or transport, would be released for free circulation duty-free. Article 3(2) of Regulation No 1972/2003, on the other hand, provides for the application to a number of products listed in Article 4(5) of that regulation of an erga omnes import duty on the date of release for free circulation. The products in question are those which were released for free circulation prior to the date of accession in the old and new Member States and which, on the date of accession, were in one of the four situations referred to above. (44) 129. It must therefore be concluded that Article 3 of Regulation No 1972/2003 does derogate from the provisions of Annex IV, Chapter 5, to the Act of Accession. (45) 130. The General Court nevertheless held, upholding the line of argument advanced by the Commission in this regard, that Article 41 of the Act of Accession constituted an appropriate and sufficient legal basis that enables the Commission to adopt the contested provision, that is to say, in this case, a provision of secondary law which is directly at odds with the provisions of an act of primary law. (ii) Does Article 41 of the Act of Accession constitute a sufficient legal basis on which to derogate from primary law? 131. Clearly, the Commission cannot, by means of an act of secondary law, (46) call into question the decisions taken by those who drafted the Act of Accession unless it is empowered to do so by a provision which itself forms part of that act. Since Regulation No 1972/2003 was adopted on the dual basis of Article 2(3) of the Accession Treaty and Article 41 of the Act of Accession, it is therefore necessary to examine whether those provisions did empower the Commission to adopt measures such as those provided for in Article 3 of that regulation. 132. Article 41 of the Act of Accession forms part of a set of provisions expressly listed in Article 2(3) of the Accession Treaty, which makes it possible for the institutions of the European Union to adopt, by way of derogation from Article 2(2) of that treaty and therefore prior to the entry into force of the latter, the measures referred to in those provisions. 133. The Commission was therefore empowered to adopt the measures referred to in Article 41 of the Act of Accession prior to accession. The question which immediately arises now is what those measures might be. 134. Article 41 of the Act of Accession provides that the Commission may, during a period of three years following the date of accession, adopt the ‘transitional measures … necessary to facilitate the transition from the existing regime in the new Member States to that resulting from the application of the common agricultural policy’, ‘under the conditions set out in [the Act of Accession]’, including, therefore, the conditions laid down in Annex IV, Chapter 5, to that act. 135. That provision thus empowers the Commission, very generally, to adopt measures which are essentially defined by their purpose but which are not otherwise specified (‘measures … necessary’). Can such empowerment be regarded as being sufficiently broad to include the adoption of measures which derogate from primary law? 136. It is important to point out first of all the exceptional nature, in the material sense of that term, of a general clause enabling an institution to adopt unspecified provisions which derogate from primary law. From that point of view, it is legitimate to ask whether a provision drafted as Article 41 of the Act of Accession may be interpreted as constituting an enabling clause of this kind. In my view, however, there is no need to settle this question in a radical and definitive fashion. For the purposes of resolving the issue raised by this case, it is sufficient to point out that any derogation from primary law which is based, as in this case, on an unspecific authorisation such as that provided for in Article 41 of the Act of Accession, must, in accordance with the Court’s case‑law, be subject to strict interpretation, regard being had to the wording, purpose and context of the provisions which establish that derogation. (47) 137. It is at this very stage that the full importance of the specific statement of reasons given by the institution to justify the adoption of the measures which are contained in an act adopted on the basis of Article 41 of the Act of Accession becomes apparent, that is to say the reasons setting out their purpose, more specifically the need for them and, finally, their proportionality. 138. Since, as I have just stated, Article 41 of the Act of Accession does not contain any general clause clearly and expressly empowering the Commission to adopt provisions of secondary law that derogate from provisions of primary law, a measure which derogates from primary law such as that laid down in Article 3 of Regulation No 1972/2003 should at the very least have been accompanied by an explicit and convincing statement of reasons establishing unequivocally that that derogation was not only necessary but also essential for the purposes of attaining the objective set by that provision. 139. The Court may review whether the provisions of an act adopted by the Commission on the basis of Article 41 of the Act of Accession are appropriate to the purpose pursued by that act only on condition that that institution has set out, in the grounds of the act in question, the reasons justifying those provisions. (48) It was after all for the Commission alone to determine, subject to review by the Court, whether and to what extent the adoption of transitional measures such as those at issue was necessary to facilitate the transition. (iii) Was the statement of reasons for the adoption of Article 3 of Regulation No 1972/2003 sufficient for legal purposes? 140. It is apparent from settled case‑law, which was in fact summed up perfectly by the General Court in paragraphs 214 to 217 of the judgment under appeal, that the statement of reasons required by Article 253 EC must be appropriate to the measure at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted it in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Court of the European Union to exercise its power of review. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. In the case of a measure intended to have general application, the statement of reasons may be limited to indicating, first, the general situation which led to its adoption and, secondly, the general objectives which it is intended to achieve. Furthermore, if a measure of general application clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for the various technical choices made. (49) 141. In this case, as the Republic of Poland has rightly observed, the General Court held that the Commission was not required to give ‘specific’ reasons for the measures referred to in Article 3 of Regulation No 1972/2003, in so far as those measures were only a ‘technical choice’ intended to give useful effect to Article 4 of the regulation, since the recitals in the preamble to that regulation ‘expressly’ identified, on the one hand, the general situation which had led to the adoption of that regulation and, on the other hand, the objective of preventing the build-up of surplus stocks and the need to introduce a system of charges on such stocks. 142. The line of argument put forward by the Republic of Poland raises two questions, one concerning the classification of the measures referred to in Article 3 of Regulation No 1972/2003 and the second, closely linked to the first, concerning the extent of the duty to state reasons which was incumbent on the Commission. After all, as the Republic of Poland has submitted, the lack of a specific statement of reasons is permissible, in the light of the Court’s case‑law, only in so far as the adoption of the measures referred to in Article 3 of Regulation No 1972/2003 were indeed the result of a technical choice. (50) 143. It cannot readily be accepted, however, that provisions of an act of secondary law which derogate from provisions of an act of primary law may be regarded as being nothing more than a technical choice. The view must rather be that, assuming that such a situation is capable of being covered by another provision of primary law, it must indeed be the subject of a specific, precise and detailed statement of reasons. 144. It was therefore for the Commission to state precisely the reasons why it considered it essential to charge an erga omnes duty on goods which, under the Act of Accession, were to be released for free circulation, subject to certain conditions as to proof of origin, duty-free. This was particularly important given that the provisions thus adopted, on the one hand, departed significantly from the practice previously followed by the institutions in comparable situations (51) and, on the other hand, were adopted and published even though they were addressed mainly to traders in States which were not yet members of the European Union. 145. It should be borne in mind that the Court has already had occasion to find, albeit in a very different context, that a decision which is the first manifestation of a new and important policy and which departs significantly from previous decision-making practice requires an explicit statement of reasons. (52) 146. In this case, however, the recitals in the preamble to Regulation No 1972/2003 do not contain any such thing, but merely reproduce reasons which, although not strictly identical to those given in similar regulations adopted on the occasion of the previous enlargements referred to above, were none the less substantively the same, even though those regulations did not include provisions equivalent to those of Article 3 of Regulation No 1972/2003. 147. It must in particular be pointed out that recital 3 in the preamble to that regulation makes no mention at all of the need to guarantee the effectiveness of the charge laid down in Article 4 thereof, which circumstance the General Court considered to be decisive in rejecting the plea alleging an insufficient statement of reasons put forward by the Republic of Poland in its action at first instance. 148. It follows from the foregoing analysis that the General Court committed an error of law in finding that Article 3 of Regulation No 1972/2003 was not invalid even though it derogated from the provisions of Annex IV, Chapter 5, to the Act of Accession and the recitals in the preamble to that regulation do not set out the reasons specifically justifying the need for that derogation. 149. In those circumstances, it is not possible for the Court to review the compatibility of the measures thus adopted with the provisions of Article 41 of the Act of Accession and whether, therefore, they were adopted with due regard for the powers conferred on the Commission by that provision. (53) 150. It should also be pointed out that the General Court’s assessment of the arguments put forward by the Republic of Poland according to which Article 3 of Regulation No 1972/2003 did not infringe the principle of free movement of goods warrants the same criticism. 151. It should after all be noted in the latter regard that, as the Court has repeatedly held, the institutions of the European Union are, like the Member States, required to comply with the provisions of the Treaty relating to free movement of goods, and in particular Article 25 EC. (54) Even assuming that Article 41 of the Act of Accession can be interpreted as authorising the Commission to adopt provisions which infringe the principle of free movement of goods, they cannot do so, in any event, without express justification. 152. In those circumstances, there is no need to examine the fourth and fifth pleas in law put forward by the Republic of Poland, alleging infringement of the principles of non-discrimination on grounds of nationality and the protection of legitimate expectations, respectively. V – Examination of the action at first instance 153. Under the first paragraph of Article 61 of the Statute of the Court of Justice, if the appeal is well founded, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits, or refer the case back to the General Court for judgment. 154. As we shall see, the Court possesses all the necessary information to give final judgment both on the plea of inadmissibility raised by the Commission during the proceedings before the General Court (55) and on the substance of the action brought by the Republic of Poland, notwithstanding the procedural peculiarity referred to in the introduction to this Opinion. A – The admissibility of the action against Regulation No 1972/2003 155. It follows from the foregoing submissions that the action brought by the Republic of Poland, lodged at the Registry of the General Court on 28 June 2004, was not out of time, that, consequently, the plea of inadmissibility raised by the Commission, in the context of which the latter relied only on the time-bar, must be dismissed and that the action brought by the Republic of Poland must therefore, in so far as it is directed against Regulation No 1972/2003, be declared admissible. B – The substance of the action against Regulation No 1972/2003, as amended by Regulation No 735/2004 156. The Republic of Poland asks the Court to give final judgment on the substance of the action, in accordance with Article 61 of the Statute of the Court of Justice, and claims that Article 3, Article 4(3) and the eighth indent of Article 4(5) of Regulation No 1972/2003, as amended, inter alia, by Regulation No 735/2004, should be annulled. It states that, in the event that the Court should agree to give final judgment, it maintains in full all the complaints and arguments put forward in its application and its reply at first instance. 157. As I pointed out in the introduction to this Opinion, this case exhibits a peculiarity which puts the Court in an entirely new situation in this appeal, in so far as, while it dismissed the action as inadmissible to the extent that it was directed against Regulation No 1972/2003, the General Court none the less examined the validity of the main provisions of that regulation by way and under cover of its analysis of the complaints raised against Regulation No 735/2004 amending it. 158. Is it therefore possible for the Court to give final judgment on the various complaints raised by the Republic of Poland against Regulation No 1972/2003 in the context of its action at first instance? 159. In reality, that question might arise if only some of the complaints directed against Regulation No 1972/2003 had been examined in the context of the examination of the validity of Regulation No 735/2004 but only in relation to those complaints which were not examined. 160. It follows, however, from the judgment under appeal that the General Court examined all the complaints raised against Regulation No 1972/2003. The view must therefore be taken that final judgment has been given on the case. 161. In this instance, it follows from the analysis of the pleas in law put forward on appeal that Article 3 of Regulation No 1972/2003 must be annulled in so far as it was adopted by way of derogation from the provisions of Annex IV, Chapter 5, to the Act of Accession and the recitals in the preamble to that regulation do not set out the reasons specifically justifying the need for that derogation. 162. In those circumstances, there is no need to examine the other pleas in law directed against Article 3 of Regulation No 1972/2003 raised by the Republic of Poland in the context of its action at first instance, alleging infringement of the principles of non-discrimination on grounds of nationality and the protection of legitimate expectations, respectively. There is likewise no need to examine the plea in law alleging misuse of powers, which the Republic of Poland expressly stated that it was not raising in the context of the appeal but which it nevertheless maintained along with all the other pleas in law raised in its action before the General Court. (56) VI – Conclusion 163. I therefore propose that the Court should rule as follows: (1) The judgment of the Court of First Instance of the European Communities of 10 June 2009 in Case T‑257/04 Poland v Commission is set aside. (2) The objection of inadmissibility raised by the European Commission before the Court of First Instance of the European Communities is dismissed. (3) Article 3 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 is annulled. (4) The action for annulment of Regulation No 1972/2003 is dismissed as to the remainder. 2 – Original language: French. 3 – Case T‑257/04 Poland v Commission [2009] ECR II‑1545 (‘the judgment under appeal’). 4 – Appeal brought against the order of 10 June 2009 in Case T‑258/04 Poland v Commission. 5 – Regulation 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 (OJ 2003 L 293, p. 3). 6 – OJ 2004 L 39, p. 13. 7 – OJ 2004 L 114, p. 13. 8 – Case C‑299/05 Commission v Parliament and Council [2007] ECR I‑8695, paragraphs 29 and 30. 9 – See, for example, Case C‑259/95 Parliament v Council [1997] ECR I‑5303; Case C‑27/96 Danisco Sugar [1997] ECR I‑6653; Case C‑179/00 Weidacher [2002] ECR I‑501; Case C‑413/04 Parliament v Council [2006] ECR I‑11221; Case C‑161/06 Skoma-Lux [2007] ECR I‑10841; Case C‑560/07 Balbiino [2009] ECR I‑4447; Case C‑140/08 Rakvere Lihakombinaat [2009] ECR I‑10533; and Case C‑248/09 Pakora Pluss [2010] ECR I‑7697. 10 – Treaty between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia, the Slovak Republic, concerning the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union (OJ 2003 L 236, p. 17; ‘the Accession Treaty’). 11 – Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (OJ 2003 L 236, p. 33; the ‘Act of Accession’). 12 – See, for example, Commission Regulation (EEC) No 57/81 of 1 January 1981 on transitional measures to be taken, on account of the accession of Greece, in respect of trade in agricultural products (OJ 1981 L 4, p. 43), at issue in Case C‑337/88 SAFA [1990] ECR I‑1; Commission Regulation (EEC) No 410/86 of 24 February 1986 on transitional measures to be taken, on account of the accession of Spain and Portugal, in respect of trade in agricultural products (OJ 1986 L 46, p. 13); and Commission Regulation (EC) No 3108/94 of 19 December 1994 on transitional measures to be taken, on account of the accession of Austria, Finland and Sweden, in respect of trade in agricultural products (OJ 1994 L 328, p. 42), at issue in Weidacher. 13 – The first paragraph of Article 2(2) of the Accession Treaty provides that the latter is to ‘enter into force on 1 May 2004 provided that all the instruments of ratification have been deposited before that date’. 14 – Article 10 of which provides that it is to enter into force, pursuant to Article 2(3) of the Accession Treaty, subject to and on the date of entry into force of the Treaty of Accession and that it is to apply, pursuant to Article 41 of the Act of Accession, until 30 April 2007. 15 – OJ 1992 L 302, p. 1. 16 – [2007] ECR I‑8925. 17 – Paragraphs 34 to 38 of the judgment under appeal. 18 – Paragraphs 38, 62 and 63 of the judgment under appeal. 19 – Paragraphs 40 to 42 of the judgment under appeal. 20 – Paragraphs 43 and 44 of the judgment under appeal. 21 – Paragraphs 45 to 48 of the judgment under appeal. 22 – Paragraphs 49 to 62 of the judgment under appeal. 23 – Paragraph 47 of the judgment under appeal. 24 – .Commission v Parliament and Council. 25 – Paragraph 73 of the judgment under appeal. 26 – Paragraph 89. 27 – Paragraphs 32 to 63 of the judgment under appeal. 28 – Paragraphs 80 to 249 of the judgment under appeal. 29 – OJ 2004 L 9, p. 8. 30 – I would also refer in this regard to the analysis contained in points 44 to 52 of my Opinion in Case C‑336/09 P Poland v Commission. 31 – Paragraphs 80 to 136 of the judgment under appeal. 32 – Paragraphs 137 to 160 of the judgment under appeal. 33 – Paragraphs 161 to 249 of the judgment under appeal. 34 – Paragraphs 108 to 110 of the judgment under appeal. 35 – Cited above. 36 – Case 265/87 Schräder HS Kraftfutter [1989] ECR 2237, paragraph 21. 37 – See, to this effect, SchraderHS Kraftfutter, paragraph 22; Case C‑157/96 National Farmers’ Union and Others [1998] ECR I‑2211, paragraph 61; and Weidacher, paragraph 26. 38 – Emphasis should be given in this regard, as Advocate General Mischo did in his Opinion in Weidacher, points 53 and 54, to the complementary nature, on the one hand, of the taxation of surplus stocks by Regulation No 1972/2003, and, on the other hand, of the obligation to eliminate abnormal stocks laid down in Annex IV, Chapter 4, to the Act of Accession. The difference between the two mechanisms lies, as the Republic of Poland and the Commission both pointed out in their written pleadings in the procedure before the General Court, in their respective spheres of application. Abnormal stocks to be eliminated are assessed at the Member State — that is to say macroeconomic — level, whereas the surplus stocks to be charged are calculated in relation to the holders themselves, at microeconomic level. 39 – It should be recalled that Article 1(8)(a) of Regulation No 735/2004 also provided for the deletion of certain products. 40 – Paragraph 87. 41 – The Republic of Poland also formally claims that Article 22 of the Act of Accession has been infringed, although its arguments in this regard are not presented independently. Having regard to the wording of that provision, which states that ‘[t]he measures listed in Annex IV to [the Act of Accession] shall be applied under the conditions laid down in that Annex’, the Republic of Poland argues that an infringement of Article 41 of the Act of Accession implies ipso facto an infringement of Article 22 of that act. 42 – I should point out that, in its appeal, the Republic of Poland expressly stated that it did not wish to revisit the last part of the judgment under appeal (paragraphs 250 to 255) concerning the question of the Commission’s misuse of powers. 43 – See, in this regard, the definition of ‘Community goods’ in point 2 of Annex IV, Chapter 5, to the Act of Accession. 44 – Article 3(3) of Regulation No 1972/2003 provides that products coming from third countries which are under inward processing (Article 4(16)(d) of Regulation No 2913/92) or temporary admission (Article 4(16)(f) of Regulation No 2913/92) are to be charged with the import duty applicable on the date of release for free circulation to products coming from third countries. 45 – Moreover, the Court has had occasion to rule, in connection with goods in transport within the enlarged Community on the date of accession, that, where the conditions for the application of Annex IV, Chapter 5, to the Act of Accession are satisfied, the regime which it lays down applies to the exclusion of other customs procedures. See Pakora Pluss, paragraphs 28 to 32. 46 – Case C‑445/00 Austria v Council [2003] ECR I‑8549, paragraph 62. 47 – See, inter alia, Case C‑352/08 Modehuis A.Zwijnenburg [2010] ECR I‑4303, paragraph 46. 48 – See, for example, Joined Cases C‑260/91 and C‑261/91 Diversinte and Iberlacta [1993] ECR I‑1885, paragraphs 12 and13. 49 – See, inter alia, Case C‑310/04 Spain v Council [2006] ECR I‑7285, paragraphs 57 to 59. 50 – Case C‑309/10 Agrana Zucker [2011] ECR I‑7333, paragraphs 37 to 39. 51 – See, in this regard, Regulations Nos 57/81, 410/86 and 3108/94, mentioned by the Commission itself in response to the General Court’s request to be informed of any measures similar to those referred to in Article 3 of Regulation No 1972/2003. 52 – Case C‑295/07 P Commission v Département du Loiret [2008] ECR I‑9363, paragraphs 44 to 49; a contrario, Joined Cases C‑57/00 P and C‑61/00 P Freistaat Sachsen and Others v Commission [2003] ECR I‑9975. 53 – See, inter alia, Diversinte and Iberlacta, paragraph 13. 54 – See Joined Cases 80/77 and 81/77 Les Commissionaires Réunis and Les Fils de Henri Ramel [1978] ECR 927; Case 218/82 Commission v Council [1983] ECR 4063; Case 37/83 Rewe‑Zentrale [1984] ECR 1229, paragraph 18; and Case 15/83 Denkavit Nederland [1984] ECR 2171, paragraph 15. 55 – See, inter alia, Case C-193/01 P Pitsiorlas v Council and ECB [2003] ECR I‑4837, paragraph 32; Case C‑521/06 P Athinaïki Techniki v Commission [2008] ECR I‑5829, paragraph 66; Case C‑319/07 P 3F v Commission [2009] ECR I‑5963, paragraph 99; and Case C‑322/09 P NDSHT v Commission [2010] ECR I‑11911, paragraphs 65 and 66. 56 – See footnote 41 above.