62009CC0335_EN
Opinion of the Advocate-General
Opinion of the Advocate-General
1. In this case, the Court has before it an appeal against a judgment of 10 June 2009 by which the Court of First Instance of the European Communities (now ‘the General Court’) (2) declared an action for annulment brought by the Republic of Poland to be in part inadmissible, because it was out of time, and in part unfounded.
2. Since the question of admissibility raised by this case is identical to that which was put to the Court in the context of another appeal, lodged at the same time in Case C-336/09 P Poland v Commission, pending before the Court, (3) I shall ask the Court to dispose of this question by reference to the analysis contained in my Opinion of 21 December 2011 in that case.
3. As regards the substance of the case, however, it must be noted from the outset that there are two regulations at issue this time. By its appeal before the General Court, the Republic of Poland sought the annulment of Commission Regulation (EC) No 1972/2003 of 10 November 2003, (4) as amended by Commission Regulation (EC) No 230/2004 of 10 February 2004 (5) and Commission Regulation (EC) No 735/2004 of 20 April 2004. (6) As we shall see, in the judgment under appeal referred to the Court, the General Court declared the action inadmissible in so far as it was directed against Regulation No 1972/2003. By contrast, it declared the action admissible in so far as it was directed against Regulation No 735/2004, amending Regulation No 1972/2003.
4. In so doing, the General Court substantively examined not only the lawfulness of Regulation No 735/2004 but also, by applying the case-law of the Court of Justice, (7) the lawfulness of the principal provisions of Regulation No 1972/2003, in so far as the provisions of the former could be regarded as forming a body of rules with the provisions of the latter.
5. This case thus offers the Court the opportunity to add to an already varied body of case-law in which it has endeavoured to resolve the problems arising from the accession of new Member States to the European Union in general and from the application to them of transitional provisions in particular. (8)
I – Legal context
6. This case has its origin in the adoption by the European Commission, pursuant to the Treaty (9) and the Act of Accession (10) of the 10 new Member States of 2004, of transitional measures in the area of the common agricultural policy relating specifically to traders in the new Member States, in this instance Regulation No 1972/2003.
7. The adoption of such transitional measures by the institutions of the European Union is nothing unusual in itself. Provisions equivalent to those of Regulation No 1972/2003 were adopted on the occasion of other enlargements, (11) in so far as they were provided for by the various treaties and/or acts of accession.
8. Regulation No 1972/2003 was adopted, and published prior to the entry into force of the Accession Treaty and the Act of Accession, on the basis of Article 2(3) of the Accession Treaty and the first paragraph of Article 41of the Act of Accession.
9. Article 2(3) of the Accession Treaty provides that, notwithstanding paragraph 2, (12) the institutions of the Union may adopt before accession the measures referred to in a number of expressly listed provisions, including Article 41 of the Act of Accession, and that such measures are to enter into force only subject to and on the date of the entry into force of that Treaty. It states:
‘Notwithstanding paragraph 2, the institutions of the Union may adopt before accession the measures referred to in Articles 6(2) second subparagraph, 6(6) second subparagraph, 6(7) second and third subparagraphs, 6(8) second and third subparagraphs, 6(9) third subparagraph, 21, 23, 28(1), 32(5), 33(1), 33(4), 33(5), 38, 39, 41, 42 and 55 to 57 of the Act of Accession, Annexes III to XIV to that Act, and Protocol 2, Article 6 of Protocol 3, Article 2(2) of Protocol 4, Protocol 8 and Articles 1, 2 and 4 of Protocol 10 annexed thereto. These measures shall enter into force only subject to and on the date of the entry into force of this Treaty.’
10. The first paragraph of Article 41 of the Act of Accession, which is expressly referred to in Article 2(3) of the Accession Treaty, therefore empowers the Commission, subject to compliance with certain procedural rules, to 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. Those transitional measures may be taken during a period of three years following the date of accession and their application is to be limited to that period. The Council of the European Union, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may extend that period. It states:
‘If transitional measures are 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 this Act, such measures shall be adopted by the Commission in accordance with the procedure referred to in Article 42(2) of Council Regulation No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector (OJ 2001 L 178, p. 1), or, as appropriate, in the corresponding Articles of the other Regulations on the common organisation of agricultural markets or the relevant committee procedure as determined in the applicable legislation. The transitional measures referred to in this Article may be taken during a period of three years following the date of accession and their application shall be limited to that period. The Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may extend this period.’
11. Those two provisions formed the basis for the adoption of Regulation No 1972/2003, (13) which was the subject of the action for annulment brought before the General Court and the validity of the principal provisions of which were indirectly examined through the examination as to the validity of Regulation No 735/2004.
12. Recital 3 in the preamble to Regulation No 1972/2003 states:
‘Trade deflections liable to disrupt the market organisations often involve products moved artificially with a view to enlargement and do not form part of the normal stocks of the State concerned. Surplus stocks may also result from national production. Provisions should, therefore, be made for deterrent charges to be levied on surplus stocks in the new Member States.’
13. Article 4(1) of Regulation No 1972/2003 requires the new Member States to levy charges on holders of surplus stocks as at 1 May 2004, the date of entry into force of the Accession Treaty and the Act of Accession.
14. Article 4(3) of that regulation provides that the amount of the aforementioned charge is to be determined by the erga omnes
import duty rate applicable on 1 May 2004.
15. Article 4(1) to (3) of that regulation are worded as follows:
‘1. Without prejudice to Annex IV, Chapter 4, to the Act of Accession, and where stricter legislation does not apply at national level, the new Member States shall levy charges on holders of surplus stocks at 1 May 2004 of products in free circulation.
2. In order to determine the surplus stock of each holder, the new Member States shall take into account, in particular:
(a) averages of stocks available in the years preceding accession;
(b) the pattern of trade in the years preceding accession;
(c) the circumstances in which stocks were built up.
The notion surplus stocks applies to products imported into the new Member States or originating from the new Member States. The notion surplus stocks applies also to products intended for the market of the new Member States.
The recording of the stocks shall be performed on the basis of the Combined Nomenclature applicable on 1 May 2004.
3 The amount of the charge referred to in paragraph 1 shall be determined by the erga omnes import duty rate applicable on 1 May 2004. The revenue of the charge collected by national authorities shall be assigned to the national budget of the new Member State.’
16. Article 4(5) of Regulation No 1972/2003 lists, Member State by Member State, the Combined Nomenclature codes of the various agricultural products concerned.
17. Finally, Article 3 of Regulation No 1972/2003, paragraph 1 of which indicates that it is to apply by way of derogation from Annex IV, Chapter 5, to the Act of Accession, inter alia, provides that that charge is also to be levied on agricultural products which, on the date of accession, are subject to a suspensive regime, whether the latter have been in free circulation in the European Community of Fifteen or in a new Member State before that date (Article 3(2)) or whether they come from third States (Article 3(3)). It states:
‘1. This Article shall apply by way of derogation from Annex IV, Chapter 5, to the Act of Accession and from Articles 20 and 214 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code. [(14) ]
2. Products listed in Article 4(5), which before 1 May 2004 have been in free circulation in the Community of Fifteen or in a new Member State and on 1 May 2004 are in temporary storage or under one of the customs treatments or procedures referred to in Article 4(15)(b) and (16)(b) to (g) of Regulation (EEC) No 2913/92 in the enlarged Community, or which are in transport after having been the subject of export formalities within the enlarged Community shall be charged with the erga omnes
import duty rate applicable on the date of release for free circulation.
The first subparagraph shall not apply to products exported from the Community of Fifteen if the importer gives evidence that no export refund has been sought for the products of the country of export. Upon the importer’s request, the exporter shall arrange to obtain an endorsement by the competent authority on the export declaration that an export refund has not been sought for the products of the country of export.
3. Products listed in Article 4(5) coming from third countries which are under inward processing referred to in Article 4(16)(d) or temporary admission referred to in Article 4(16)(f) of Regulation (EEC) No 2913/92 in a new Member State on 1 May 2004 and which are released for free circulation o n or after that date shall be charged with the import duty applicable on the date of release for free circulation to products coming from third countries.’
18. Article 1 of Regulation No 735/2004 amends, inter alia, the eighth indent of Article 4(5) of Regulation No 1972/2003, relating to Poland, by removing some products from and adding other products to the list of products referred to in the latter regulation.
II – The procedure before the General Court and the judgment under appeal
19. In an action brought before the General Court on 28 June 2004, the Republic of Poland sought the annulment of 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.
20. By order of 11 July 2006, the President of the Third Chamber of the General Court stayed, pursuant to the third paragraph of Article 54 of the Statute of the Court of Justice and Articles 77(a) and 78 of the Rules of Procedure of the General Court, proceedings in that case until the Court of Justice had delivered judgment in Case C-273/04 Poland
v Council .
21. The Court delivered its judgment in Case C-273/04 Poland
v Council (15) on 23 October 2007. In that judgment, it examined the substance of the case directly and did not therefore give a ruling on the admissibility of the action. By the judgment under appeal, the General Court dismissed the action of the Republic of Poland as being in part inadmissible, because it was out of time, and in part unfounded.
A – Admissibility
22. The General Court found that, since Regulation No 1972/2003 was published in the Official Journal of the European Union
on 11 November 2003, the period for bringing an action against that regulation expired on 4 February 2004. Since the action of the Republic of Poland was lodged at the Registry of the General Court on 28 June 2004, the General Court therefore held that it had been brought out of time in so far as it was directed against Regulation No 1972/2003. (16)
23. As in the order in Case T-258/04 Poland
v Commission, the General Court upheld the objection of inadmissibility raised by the Commission on the basis of a strict application of the fifth paragraph of Article 230 EC.
24. It found that the action against Regulation No 1972/2003 had been brought after the two-month time-limit laid down by that provision, calculated as from the regulation’s publication, and concluded from this that the Republic of Poland’s action was out of time. (17) It then went on to dismiss the various arguments put forward by that Member State.
25. It thus dismissed, as being incapable of calling that conclusion into question, the arguments alleging that the regulation had not been published in the 20 official languages of the European Union, (18) that its entry into force was conditional upon the entry into force of the Accession Treaty (19) and that it was addressed to all the Member States, including the future Member States. (20)
26. Next, the General Court sought to demonstrate that that strict application of the procedural time-limits as running from the date of publication of Regulation No 1972/2003 did not infringe the Republic of Poland’s right to effective judicial protection. (21)
27. In the course of examining the admissibility of the action, the General Court was also at pains to point out that the strict application of the Community rules concerning procedural time-limits may not be derogated from save where the circumstances are quite exceptional, in the sense of being unforeseeable or amounting to force majeure. (22) However, it took the view in this connection that the Republic of Poland had not explained how the circumstances at issue were quite exceptional in regard to it and were so to such an extent as to justify a derogation from the principle of strict application of procedural time-limits, thereby prejudicing the principle of legal certainty.
28. It formally concluded from this, in paragraph 63 of the judgment under appeal, that, in regard to Regulation No 1972/2003 as such, the action was out of time and must be dismissed as inadmissible.
29. It nevertheless agreed to analyse the argument put forward in the alternative by the Republic of Poland to the effect that the action was, in any event, admissible in so far as it concerned the products added by Regulation No 735/2004 to the list of products in the eighth indent of Article 4(5) of Regulation No 1972/2003 (paragraphs 64 to 73 of the judgment under appeal).
30. On the basis of the case-law of the Court of Justice, (23) the General Court concluded that its action was admissible ‘in so far as it [could] be construed as amounting to an application for annulment of Regulation No 735/2004’ (24) and that its pleas in law and arguments challenging the contested provisions of Regulation No 1972/2003 must be interpreted in that manner.
B – Substance
31. As regards the substance of the case, the General Court examined the various pleas in law and arguments put forward by the Republic of Poland which, while formally directed against the provisions of Regulation No 735/2004, on the one hand, challenged the lawfulness of Articles 3 (first part, paragraphs 161 to 249 of the judgment under appeal) and 4 (second and third parts, respectively, paragraphs 80 to 136 and 137 to 160 of the judgment under appeal) of Regulation No 1972/2003 and, on the other hand, alleged a misuse of powers (fourth part, paragraphs 250 to 254 of the judgment under appeal).
1. Article 4 of Regulation No 1972/2003
32. First, the Republic of Poland had put forward two pleas in law seeking to have Regulation No 735/2004 annulled in so far as it subjected seven new products to the measure referred to in Article 4(3) of Regulation No 1972/2003, the first alleging infringement of Article 41 of the Act of Accession and of the principle of proportionality, the second alleging infringement of the principle of non-discrimination.
33. In the judgment under appeal, the General Court, in the first place, examined, in turn and carefully distinguishing between them (paragraph 95 of the judgment under appeal), the arguments alleging infringement, by Article 4(3) of Regulation No 1972/2003, of Article 41 of the Act of Accession, on the one hand, and of the principle of proportionality, on the other.
34. It took the view, first of all (paragraphs 96 to 102 of the judgment under appeal), by analogy with the findings of the Court of Justice in Weidacher, (25) that both precluding the build-up of stocks for speculative purposes and neutralising the economic advantages accruing to operators who had built up surplus stocks at low prices were capable of justifying the adoption by the Commission of a measure under the first paragraph of Article 41 of the Act of Accession.
35. Next, after pointing out that the Republic of Poland was not contesting the principle of charging but merely the amount of the contested charge (paragraph 103 of the judgment under appeal), the General Court examined the proportionality (paragraphs 104 to 121 of that judgment) of that amount, and concluded that the Republic of Poland had not succeeded in showing that the fixing of the amount of the contested charge was manifestly inappropriate or disproportionate.
36. In this regard, the General Court held (paragraph 111 of the judgment under appeal), with reference to recital 3 in the preamble to Regulation No 1972/2003, that ‘the objective which the Commission was pursuing by means of the contested charge was not solely to prevent the build-up of stocks of the products at issue for speculative purposes arising from trade, but quite simply to prevent the build-up of surplus stocks, that is to say stocks which were not part of the usual reserves found in the new Member States’.
37. It then examined whether the Republic of Poland had succeeded in showing that the fixing of the amount of the contested charge ‘manifestly exceeded what was necessary to prevent the build-up of surplus stocks from whatever source’.
38. It considered, on the one hand, that, although a charge the amount of which was fixed on the basis of a duty corresponding to the difference between Polish and Community import duties ‘could have been useful in preventing the build-up of surplus stocks from imports, it [was] far from clear that it would also have been sufficient to prevent the build-up of surplus stocks from national production’ (paragraph 114 of the judgment under appeal). It added that, in certain circumstances, that charge could have no dissuasive effect on the build-up of surplus stocks from national production.
39. On the other hand, the General Court (paragraphs 117 to 120 of the judgment under appeal) dismissed the argument that Regulation No 735/2004 was incapable of achieving the objectives pursued by Regulation No 1972/2003, taking into account the production cycles of the products which it covered, without examining the merits of that argument. It pointed out in this regard that the Republic of Poland had not in any way established that surplus stocks of the products referred to in Regulation No 735/2004 could not have been built up before the regulation was adopted. It also stated that Article 4(2) of Regulation No 1972/2003 left the new Member States a certain discretion in determining whether the stocks of the products at issue were the result of activity justified by normal conduct in the market, and hence in limiting the taxation of holders of such stocks to those cases in which the build-up gave rise to a risk of market disturbance, thus reinforcing the proportionate nature of the measure referred to in Article 4(3) of Regulation No 1972/2003.
40. In the second place, the General Court also dismissed as unfounded the plea alleging infringement of the principle of non-discrimination (paragraphs 127 to 136 of the judgment under appeal). It held in this regard, first, that the situation of Polish traders could not be regarded as comparable to that of traders established in the Community before 1 May 2004 (paragraphs 129 and 130 of that judgment). Secondly, it considered that the Republic of Poland could not be regarded as having received discriminatory treatment in comparison with that of the Member States which joined the European Union in 1995 (paragraphs 131 to 134 thereof).
41. Secondly, the Republic of Poland had put forward a single plea in law alleging that Regulation No 735/2004 should be annulled in so far as it added seven additional products to the list of products contained in the eighth indent of Article 4(5) of Regulation No 1972/2003, in which context it raised three main complaints which the General Court dismissed as unfounded (paragraphs 132 to 160 of the judgment under appeal).
2. Article 3 of Regulation No 1972/2003
42. The Republic of Poland had put forward five pleas in law challenging Article 3 of Regulation No 1972/2003, the first alleging infringement of the principle of free movement of goods, the second alleging the Commission’s lack of power and infringement of Articles 22 and 41 of the Act of Accession, the third alleging infringement of the principle of non-discrimination on grounds of nationality, the fourth alleging a lack of reasons or insufficient statement of reasons, and the fifth alleging infringement of the principle of the protection of legitimate expectations.
43. The General Court rejected all the pleas in law and arguments put forward by the Republic of Poland.
44. The General Court rejected the first plea alleging infringement of the principle of free movement of goods, pointing out principally that levying the charge imposed by Article 3 of Regulation No 1972/2003 did not infringe the prohibition of customs duties and charges having equivalent effect laid down in Article 25 EC because that charge was not imposed unilaterally by a Member State but was a Community measure adopted, on a temporary basis, in order to address certain difficulties for the common agricultural policy arising from the accession of 10 new Member States to the European Union (paragraph 179 of the judgment under appeal).
45. In response to the second plea put forward by the Republic of Poland, formally alleging the Commission’s lack of power to adopt the provisions of Article 3 of Regulation No 1972/2003 and infringement of Articles 22 and 41 of Annex IV, Chapter 5, to the Act of Accession, the General Court held (paragraphs 186 to 194 of the judgment under appeal), in essence, that the system of levying charges on surplus stocks of products in free circulation on 1 May 2004, provided for in Article 4 of Regulation No 1972/2003, was one of the transitional measures which could be adopted by the Commission under the first paragraph of Article 41 of the Act of Accession (paragraph 187 of that judgment) and that the measures necessary to safeguard the effectiveness of that system of charges must also be covered by that provision (paragraph 188 thereof). It therefore examined next whether the provisions of Article 3 of Regulation No 1972/2003, levying the same duty on products subject to a suspensive regime or in transport, were essential to ensure the effectiveness of Article 4 of that regulation (paragraphs 189 to 193).
46. It held that this was so. Had it not been for the measures referred to in Article 3 of Regulation No 1972/2003, traders established in the new Member States could have artificially reduced their surplus stocks of the products at issue by placing them under a suspensive regime in one or more old or new Member States (paragraph 191 of the judgment under appeal) and could then have placed them in free circulation in the enlarged Community after 1 May 2004 without having to pay the contested charge, which would have deprived Article 4 of Regulation No 1972/2003 of all effect.
47. In the context of the third plea, alleging infringement of the principle of non-discrimination, the Republic of Poland maintained, principally, that, unlike products exported from Poland, products exported from the Community of Fifteen could be exempt from the erga omnes
import duty under Article 3(2) of Regulation No 1972/2003, provided that evidence was produced to show that no export refund had been sought for those products.
48. The General Court rejected that plea as unfounded (paragraphs 199 to 207 of the judgment under appeal), on the basis of the principle that no discrimination could result from the mere application of different rules to traders in the new Member States, on the one hand, and to traders in the old Member States, on the other (paragraph 200 thereof). It took the view that the objectives pursued by Article 3(2) of Regulation No 1972/2003 were different depending on whether they were applied to products coming from the new Member States or to products coming from the old Member States. Essentially, the objective of those provisions, in regard to products coming from the old Member States which were not subject to the charge referred to in Article 4 of Regulation No 1972/2003, was to prevent products in respect of which export refunds had been paid before 1 May 2004 from benefiting from a second refund when exported to third countries after 30 April 2004, as is clear from recital 4 in the preamble to the regulation (paragraph 203 of that judgment). On the other hand, the objective of those provisions in regard to products coming from the new Member States was to prevent traders from being able artificially to reduce the stocks built up before 1 May 2004 by using one of the suspensive regimes so as to place them in free circulation after that date as products not subject to import duties (paragraph 201 thereof).
49. The General Court also rejected as unfounded the fourth plea, alleging infringement of Article 253 EC. Having recalled the relevant case-law concerning the statement of reasons for acts of the institutions (paragraphs 214 to 218 of the judgment under appeal), it held, first of all, that the essential reasons for Regulation No 1972/2003 were set out in recitals 1 to 6 of its preamble. After examining those recitals (paragraphs 220 to 223 of that judgment), it found (paragraph 224 thereof) that none of them expressly set out the specific reasons which led the Commission to adopt Article 3 of that regulation. It nevertheless took the view that this did not mean that Regulation No 1972/2003 was vitiated by an insufficient statement of reasons. Placing that provision in its context and analysing the essential objectives of that regulation, it considered, in essence, that Article 3 of that regulation was a technical choice on the part of the Commission intended to complete the system of charges introduced by Article 4 of the regulation and to ensure the effectiveness of the latter provision. Since the ‘need for the measures referred to in Article 3 of Regulation No 1972/2003 to complete the system of charges’ was ‘evident’ (paragraph 232 of the judgment under appeal), the Commission was not required to provide ‘a more specific statement of reasons’ (paragraph 234 thereof).
50. Finally, the General Court rejected as unfounded the fifth plea, alleging infringement of the principle of the protection of legitimate expectations, on the ground, on the one hand, that the Community did not in any way give the sectors concerned to understand that it would not adopt transitional measures such as those in Article 3 of Regulation No 1972/2003 and, on the other hand, that any normally diligent trader must have known, since the publication of the Act of Accession, that the Commission was empowered to adopt such transitional measures under the first paragraph of Article 41 of that act.
3. Misuse of powers
51. By its final plea, the Republic of Poland maintained that the fact that Regulation No 735/2004 subjects seven new products to the various measures laid down in Regulation No 1972/2003 constituted a misuse of powers since those measures did not facilitate the Republic of Poland’s transition to the system resulting from the implementation of the common agricultural policy but protected the Community of Fifteen against competition linked to the flow of agricultural products from the new Member States.
52. The General Court rejected that plea on the ground that it was not independent of the allegations examined in the context of the other pleas.
53. The General Court therefore dismissed the action brought by the Republic of Poland in its entirety.
III – Procedure before the Court of Justice and forms of order sought
54. The Republic of Poland lodged the present appeal at the Registry of the Court of Justice on 24 August 2009. In its written pleadings, it requested that its appeal be examined by the Grand Chamber.
55. Since a hearing had not been requested by the parties, the Court decided not to hold one.
56. The Republic of Poland claims that the Court should:
– set aside the judgment under appeal;
– annul Article 3, Article 4(3) and the eighth indent of Article 4(5) of Commission Regulation No 1972/2003, as amended by Regulation No 230/2004 and Regulation No 735/2004; and
– order the Commission to pay the costs.
57. The Commission contends that the Court should:
– dismiss the appeal as unfounded; and
– order the Republic of Poland to pay the costs.
IV – The appeal
58. In its appeal, the Republic of Poland calls into question, on the one hand, the General Court’s examination of the admissibility of its action against Regulation No 1972/2003, (26) and, on the other hand, the examination of the substance of its action, in so far as it was directed against Regulation No 735/2004 amending Regulation No 1972/2003. (27)
A – The General Court’s assessment of admissibility
59. All the pleas in law and arguments by which the Republic of Poland challenges the General Court’s assessment of the admissibility of its action against Regulation No 1972/2003 are substantively identical to those which it raised in Case C-336/09 P Poland
v Commission .
60. That substantive identity stems of course from the substantive identity of the grounds on which the General Court dismissed as inadmissible the action against Commission Regulation (EC) No 60/2004 of 14 January 2004 laying down transitional measures in the sugar sector by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (28) in the order in Case T-258/04 Poland v Commission, on the one hand, and the action against Regulation No 1972/2003 in the judgment under appeal, on the other.
61. I shall therefore take the liberty of referring to the analysis of those various pleas and arguments which I undertook in points 19 to 43 of my Opinion in Case C-336/09 P Poland
v Commission and which led me to the conclusion that an interpretation of Article 230 EC that would result in a declaration as to the inadmissibility of the action by the Republic of Poland, on the sole ground that it was brought after a period of two months following the date of publication of the contested regulation, must be regarded as being contrary to the value of the rule of law and the principle as to the equality of the Member States vis-à-vis the Treaties.
62. I therefore propose that the Court uphold (29) the Republic of Poland’s argument as to the admissibility of its action and set aside the judgment under appeal in so far as it dismisses the action for annulment of Regulation No 1972/2003 as inadmissible.
63. It must be added that, if, as I shall propose below, the Court were to conclude that the action against Regulation No 1972/2003 is, as such, admissible and decided to give final judgment in this case, it would be compelled to examine the pleas in law and arguments raised at first instance by the Republic of Poland against Regulation No 1972/2003, even though the General Court did not examine these at first instance. This is of no consequence in the circumstances of this case, however, inasmuch as the General Court carried out an in-depth examination of those pleas in law and arguments when considering the validity of Regulation No 735/2004.
B – The General Court’s assessment of the substance of the case
64. As regards the substance of the case, the Republic of Poland puts forward a total of eight pleas in law which it formulates as part of complaints formally directed against the General Court’s assessment of its pleas in law and arguments relating to the validity, first, of Article 4(3), (30) next, of the eighth indent of Article 4(5), (31) and, finally, of Article 3 (32) of Regulation No 1972/2003.
65. My examination will look first at the General Court’s assessment of the lawfulness of Article 4(3) and (5) of Regulation No 1972/2003 and then at its assessment of Article 3.
1. The complaints directed against Article 4 of Regulation No 1972/2003
66. Article 4 of Regulation No 1972/2003 establishes a charge on holders of surplus stocks of products in free circulation on 1 May 2004 with a view to avoiding the risk of trade being deflected, to the detriment of the common organisation of agricultural markets, as a result of the accession of the 10 new Member States. In accordance with Article 4(3), the amount of that charge is to be determined by the erga omnes
import duty rate applicable on 1 May 2004. In the specific case of the Republic of Poland, the Combined Nomenclature codes of the products attracting that charge are listed in the eighth indent of Article 4(5) of Regulation No 1972/2003.
67. The Republic of Poland raises two pleas challenging the General Court’s assessment of the validity of the charge thus established by Article 4(3) of Regulation No 1972/2003, the first alleging infringement of Article 41 of the Act of Accession and of the principle of proportionality, and the second alleging infringement of the principle of non-discrimination. It also raises a plea calling into question the General Court’s assessment of the validity of the eighth indent of Article 4(5) of Regulation No 1972/2003, as amended by Regulation No 735/2004.
(a) The first plea in law: infringement of Article 41 of the Act of Accession and of the principle of proportionality
(i) Arguments of the parties
68. The Republic of Poland submits that the General Court failed to take into account Article 41 of the Act of Accession and the principle of proportionality in finding that the amount of the charge introduced by Article 4(3) of Regulation No 1972/2003 was necessary and proportionate for the purpose of achieving the objective of preventing the build-up of stocks for speculative purposes pursued by that regulation.
69. It raises three separate complaints in this regard.
70. First, it takes the view that the General Court has, (33) unjustifiably, disregarded the express conditions under which the amount of such a charge may be fixed, which conditions, it submits, were laid down by the Court of Justice in Weidacher. (34) Its view, in essence, is that only a charge set at an amount which neutralises speculative profits, that is to say which is equal to the difference between the import duty applicable in the Community and the import duty applicable in the new Member State on the date of accession, was capable of ensuring that the objective pursued would be fulfilled in accordance with the principle of proportionality. Because of its amount, the contested charge thus contains, by comparison with that at issue in Weidacher, an additional punitive component which places traders who are liable to pay it in a less favourable competitive position than traders in the Community of Fifteen.
71. Secondly, the Republic of Poland submits that, notwithstanding their importance, the General Court did not refer to its arguments to the effect that a charge in an amount which neutralised speculative profits was perfectly adequate for the purposes of achieving the objective of prevention pursued. It points out in this regard that the General Court considered that the main justification for the amount of the charge was the need to prevent and deter the build-up of surplus stocks from national production (paragraphs 114 to 118 of the judgment under appeal). However, taking into account the date on which the regulation was adopted, just a few days prior to the entry into force of the Accession Treaty and the Act of Accession, the levying of the charge on the products referred to in Regulation No 735/2004 could not be regarded as being capable of preventing the risk of a build-up of surplus stocks, in particular surplus stocks from national production, and could not therefore help achieve the preventive and deterrent objectives pursued by Regulation No 1972/2003 and Regulation No 735/2004. Consequently, the need to prevent and deter the build-up of surplus stocks could not, in the circumstances of this case, justify the amount of the contested charge.
72. Thirdly, it considers that, even assuming that it can be accepted that that charge was capable of having a deterrent effect, there would in any event have to be a link between its amount and the risk of speculation which it was intended to combat, which link does not exist in this instance. In accepting the approach adopted in Article 4(3) of Regulation No 1972/2003 without taking into account the absence of that link, the General Court infringed the principle of proportionality.
73. Although it submits that the Republic of Poland appears to be seeking to have the action re-examined, the Commission considers that those arguments are, in any event, without foundation.
(ii) Analysis
74. The aforementioned three complaints raised by the Republic of Poland call into question various aspects of the General Court’s assessment of the proportionality of the amount of the charge laid down in Article 4(3) of Regulation No 1972/2003, in particular with respect to the products referred to in Regulation No 735/2004, and of its lawfulness in the light of Article 41 of the Act of Accession. It also considers, incidentally, that the General Court failed to fulfil its duty to state reasons inasmuch as it did not set out the grounds on which it departed from the case-law in Weidacher.
75. First of all, the view cannot be taken, contrary to what the Commission appears to submit, that that line of argument simply reproduces the line of argument put forward at first instance and, in addition, asks the Court of Justice to substitute its assessment for that of the General Court. On the contrary, the Republic of Poland is asking the Court to review the conditions under which the General Court interpreted and applied the principle of proportionality in this case.
76. In this regard, the Court of Justice, as the General Court pointed out in the judgment under appeal (paragraphs 104 to 106), has repeatedly held that, pursuant to the principle of proportionality, measures imposing financial charges on economic agents are lawful provided that they are appropriate and necessary for the attainment of the objectives legitimately pursued by the legislation in question, and that, where there is a choice between several appropriate measures, the least onerous measures are used and the charges imposed are not disproportionate to the aims pursued. (35)
77. Judicial review of compliance with those conditions must, however, take account of the fact that, when exercising the powers conferred on it by the Council, or indeed by those who drafted the Act of Accession, in regard to the common agricultural policy for the purposes of implementing the rules which it lays down, the Commission may have to exercise a wide discretion, with the result that the lawfulness of a measure adopted in that sphere can be affected only if the measure is manifestly inappropriate in terms of the objective which the competent institution is seeking to pursue. (36)
78. In this case, the General Court identified perfectly clearly, in paragraph 111 of the judgment under appeal, the objective which the Commission sought to pursue through the adoption of Regulation No 1972/2003.
79. As expressly indicated in recital 3 in its preamble, Regulation No 1972/2003 had as its purpose, inter alia, to levy deterrent charges on surplus stocks of the products to which it referred that were situated in the new Member States. After all, as that recital makes clear, the common organisations of the markets in the products in question were likely to be disrupted by the release for free circulation of surplus stocks of products — that is to say stocks of products not forming part of normal stocks — built up in the new Member States, whether those stocks were the result of the artificial movement of products with a view to enlargement, thus deflecting trade, or of national production.
80. The General Court was therefore right to conclude from this that the objective of that regulation was not confined to preventing the build-up of speculative stocks of the products in question resulting from trade, but was quite simply to prevent the build-up of surplus stocks, defined as being stocks not forming part of the usual reserves found in the new Member States which were likely to disrupt the common organisations of the markets on the date of entry into force of the Act of Accession.
81. The General Court also pointed out in this regard (paragraph 112 of the judgment under appeal), quite rightly, that the approach adopted by the Commission is consistent with the idea which those who drafted the Act of Accession had of surplus stocks, since Annex IV, Chapter 4, to that act requires the new Member States to eliminate surplus stocks at their own expense. (37)
82. The proportionality of the charge itself as laid down in Article 4(3) of Regulation No 1972/2003, on the one hand, and of the addition by Regulation No 735/2004 of new products to the list of products to which that charge applied, on the other hand, should therefore have been examined in the light of the objective of preventing and deterring a build-up of surplus stocks, as defined above.
83. In this case, although it is fair to say that the General Court was able to conclude, without committing a manifest error in so doing, that the Republic of Poland had not succeeded in showing that the fixing of the amount of the contested charge on the basis of the erga omnes
import duty applicable on 1 May 2004 manifestly exceeded what was necessary to prevent the build-up of surplus stocks from whatever source (paragraphs 113 to 116 of the judgment under appeal), the situation is a little more complex when it comes to the addition of new products by Regulation No 735/2004.
84. The General Court considered, in my view correctly, in paragraph 114 of the judgment under appeal, that, although a charge the amount of which is fixed on the basis of a duty corresponding to the difference between Polish and Community import duties on 30 April 2004 could have been useful in preventing the build-up of surplus stocks from imports, it was far from clear that it would also have been sufficient to prevent the build-up of surplus stocks from national production.
85. The General Court added that Article 4(2) of Regulation No 1972/2003 left the new Member States a certain discretion in determining surplus stocks, which allowed them to limit the taxation of holders of such stocks to those cases in which the build-up gave rise to a risk of market disturbance, thus reinforcing the proportionate nature of the measure (paragraph 120 of the judgment under appeal). Although that reasoning would benefit from further clarification, it must nevertheless be found that the various factors which the Member States were required to take into account, under Article 4(2)(a) to (c) of Regulation No 1972/2003, in order to determine surplus stocks, including the circumstances in which those stocks were built up, were indisputably such as to make it possible to target accurately and, therefore, proportionately the charges payable by holders of surplus stocks.
86. A comparison with the situation examined by the Court in Weidacher does not cause me to call that assessment into question, since the regulation at issue in the latter case pursued objectives which, although broadly similar, were nevertheless manifestly more specifically defined. Unlike Regulation No 1972/2003, Regulation No 3108/94, at issue in Weidacher, had no deterrent objective.
87. While it is true that the recitals in the preamble to Regulation No 1972/2003 do not give a clear and precise indication of the deterrent objectives pursued, the view still cannot be taken that the duty to state reasons incumbent on the institutions required the Commission to indicate specifically how and why it intended to depart from the practice which it had followed on the occasion of a previous accession.
88. The reasoning on the basis of which the General Court rejected, without ruling on whether or not it was well founded, the argument advanced by the Republic of Poland to the effect that, taking into account the date of its adoption, Regulation No 735/2004 was not capable of attaining the preventive and deterrent objective pursued by Regulation No 1972/2003 (paragraphs 118 and 119 of the judgment under appeal) is, however, more dubious.
89. It is, after all, relatively clear that, having regard to the production cycles of agricultural products, Regulation No 735/2004 could not reasonably be regarded as being capable of attaining the objective of preventing or deterring the build-up of surplus stocks from national production pursued by Regulation No 1972/2003.
90. That said, the fact remains that that regulation, recital 1 in the preamble to which states that, in the context of the ongoing examination of the risks associated with the products listed in Article 4(5) of Regulation No 1972/2003, it was necessary to amend the latter by adding certain products, (38) was not intended to apply only to surplus stocks arising from national production but, more generally, to any surplus stock, whatever its source.
91. Furthermore, the General Court was at pains to point out, in paragraph 118 of the judgment under appeal, that traders established in the new Member States may have had an interest, once the date of accession was known, in limiting their sales and therefore in building up stocks of certain products which they could later place on the enlarged Community market.
92. It must therefore be concluded that the first substantive plea in law raised by the Republic of Poland against the judgment under appeal, alleging infringement of Article 41 of the Act of Accession and of the principle of proportionality, must be rejected as unfounded.
(b) The second plea in law: infringement of the principle of non-discrimination
(i) Arguments of the parties
93. The Republic of Poland criticises the General Court for having held, in breach of the principle of non-discrimination, that the charge introduced by Article 4(1) of Regulation No 1972/2003 had been determined on the basis of objective criteria of differentiation.
94. While pointing out that it does not dispute the General Court’s finding, in paragraph 129 of the judgment under appeal, that ‘the agricultural situation in the new Member States was radically different from that in the old Member States’, the Republic of Poland considers that the mere finding that a different situation existed did not exempt the Commission from its obligation to adopt measures based on objective criteria of differentiation. It submits that the difference between the agricultural situation in the new Member States and that in the old Member States was objectively capable of justifying not the actual existence of the charge but its amount, which argument the General Court failed to examine.
95. The Republic of Poland adds that the relevance of its complaint, to the effect that the amount of the charge is arbitrary and not objectively justified, is strengthened by two factors, referred to by the General Court in paragraphs 132 and 133 and in paragraph 134, respectively, of the judgment under appeal. On the one hand, it submits, it is undisputed that it was treated differently from States which acceded to the European Union earlier or later, which were indeed subjected to charges on surplus stocks but ones calculated on the basis of the difference between import duties and not solely on the basis of the Community import duty. On the other hand, the difference between the agricultural situations in the new Member States, which justifies the fact that the list of products liable to the charge varies from one Member State to another, should have been reflected in the amount of the charge.
96. While pointing out that the argument put forward by the Republic of Poland seems to confuse infringement of the principle of non-discrimination and infringement of the principle of proportionality, the Commission takes the view that the General Court was right to confine itself to finding that the agricultural situation in the new Member States was different from that in the old Member States as the basis for concluding that the argument alleging infringement of the principle of non-discrimination was to be rejected.
(ii) Analysis
97. The principal complaint made by the Republic of Poland, to the effect that the General Court failed to rule on its plea alleging infringement of the principle of non-discrimination, is unfounded.
98. In paragraph 129 of the judgment under appeal, the General Court held that the agricultural situation in the new Member States was radically different from that in the old Member States, referring in this context to the identical finding which had been reached by the Court of Justice in Poland
v Council . (39) In that case, the Court had held that it was undisputed that the agricultural situation in the new Member States was radically different from that in the old Member States, which finding had enabled it to reject a complaint alleging infringement of the principle of non-discrimination. In paragraph 130 of the judgment under appeal, the General Court concluded from this, quite rightly in the Commission’s submission, that the two situations were not comparable.
99. In so far as they are presented in support of that principal complaint, the further arguments put forward by the Republic of Poland must therefore be rejected.
100. The second substantive plea in law raised by the Republic of Poland against the judgment under appeal, alleging infringement of the principle of non-discrimination, must also be rejected as unfounded.
(c) The complaints directed against the eighth indent of Article 4(5) of Regulation No 1972/2003
101. In a single plea in law, the Republic of Poland criticises the General Court for having held, in breach of Article 41 of the Act of Accession and of the principle of proportionality, that the addition, pursuant to Article 1(8) of Regulation No 735/2004, of seven new products to the list of products subject to the charge laid down in the eighth indent of Article 4(5) of Regulation No 1972/2003 was essential for the purposes of attaining the objectives pursued by Regulation No 1972/2003.
102. It maintains, more specifically, that, since the objective of Regulation No 1972/2003 is to prevent the build-up of surplus stocks from national production, it would have been pointless to apply the charge to products for which the import duty in Poland was higher than the Community import duty. Moreover, taking into account the date of its adoption, 11 days prior to the entry into force of the Accession Treaty, Regulation No 735/2004 was not capable of attaining the objective pursued by Regulation No 1972/2003, that is to say to prevent the build-up of surplus stocks from national production.
103. In this way, the Republic of Poland expressly calls into question the reply given by the General Court, in paragraphs 158 and 159 of the judgment under appeal, to its argument that certain products were liable to the contested charge even though the Polish import duties in force on those products on 30 April 2004 were higher than the Community import duties.
104. The General Court held (paragraph 158 of the judgment under appeal) that the Republic of Poland had put forward no reason to justify a conclusion that the principal cause of the speculative stocking of agricultural products was the possibility that there might be a difference in the import duties between the Community of Fifteen and the new Member States. It added (in paragraph 159 of that judgment) that, in any event, Regulation No 1972/2003 had as its objective to prevent not only a build-up of stocks for speculative purposes but also a build-up of surplus stocks from national production.
105. Since the line of argument put forward by the Republic of Poland is largely the same as that which it advanced in connection with its first plea in law directed against Article 4(3) of Regulation No 1972/2003, it must, for the same reasons, be rejected as unfounded.
2. The complaints directed against Article 3 of Regulation No 1972/2003
106. Article 3 of Regulation No 1972/2003, headed ‘Suspensive regime’, paragraph 1 of which states that it is to apply by way of derogation from Annex IV, Chapter 5, to the Act of Accession and from Articles 20 and 214 of Regulation No 2913/92, provides in paragraph 2 that the products listed in Article 4(5) of that regulation, which before 1 May 2004 had been in free circulation but which on 1 May 2004 were under one of the customs treatments or procedures other than free circulation, are to be charged with the erga omnes
import duty rate applicable on the date of release for free circulation.
(a) 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 Com mission 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 (40) 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 (41) 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 (42) 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. (43)
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. (44)
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, (45) 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. (46)
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. (47) 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. (48)
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. (49)
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 (50) 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. (51)
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 e quivalent 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. (52)
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. (53) 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 (54) 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. (55)
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.
(1) .
(2)  –	Case T-257/04 Poland
v Commission
[2009] ECR II-1545 (‘the judgment under appeal’).
(3)  –	Appeal brought against the order of 10 June 2009 in Case T-258/04 Poland v Commission .
(4)  –	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).
(5)  –	OJ 2004 L 39, p. 13.
(6)  –	OJ 2004 L 114, p. 13.
(7)  –	Case C-299/05 Commission
v Parliament and Council
[2007] ECR I-8695, paragraphs 29 and 30.
(8)  –	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.
(9)  –	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’).
(10)  –	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’).
(11)  –	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 .
(12)  –	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’.
(13)  –	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.
(14)  – OJ 1992 L 302, p. 1.
(15)  –	[2007] ECR I-8925.
(16)  –	Paragraphs 34 to 38 of the judgment under appeal.
(17)  –	Paragraphs 38, 62 and 63 of the judgment under appeal.
(18)  –	Paragraphs 40 to 42 of the judgment under appeal.
(19)  –	Paragraphs 43 and 44 of the judgment under appeal.
(20)  –	Paragraphs 45 to 48 of the judgment under appeal.
(21)  –	Paragraphs 49 to 62 of the judgment under appeal.
(22)  –	Paragraph 47 of the judgment under appeal.
(23)  –	Commission
v Parliament and Council .
(24)  –	Paragraph 73 of the judgment under appeal.
(25)  –	Paragraph 89.
(26)  –	Paragraphs 32 to 63 of the judgment under appeal.
(27)  –	Paragraphs 80 to 249 of the judgment under appeal.
(28)  –	OJ 2004 L 9, p. 8.
(29)  –	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 .
(30)  –	Paragraphs 80 to 136 of the judgment under appeal.
(31)  –	Paragraphs 137 to 160 of the judgment under appeal.
(32)  –	Paragraphs 161 to 249 of the judgment under appeal.
(33)  –	Paragraphs 108 to 110 of the judgment under appeal.
(34)  –	Cited above.
(35)  –	Case 265/87 Schräder HS Kraftfutter
[1989] ECR 2237, paragraph 21.
(36)  –	See, to this effect, Schrader HS Kraftfutter, paragraph 22; Case C-157/96 National Farmers’ Union and Others
[1998] ECR I-2211, paragraph 61; and Weidacher, paragraph 26.
(37)  –	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.
(38)  –	It should be recalled that Article 1(8)(a) of Regulation No 735/2004 also provided for the deletion of certain products.
(39)  –	Paragraph 87.
(40)  –	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.
(41)  –	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.
(42)  –	See, in this regard, the definition of ‘Community goods’ in point 2 of Annex IV, Chapter 5, to the Act of Accession.
(43)  –	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.
(44)  –	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.
(45)  –	Case C-445/00 Austria
v Council
[2003] ECR I-8549, paragraph 62.
(46)  –	See, inter alia, Case C-352/08 Modehuis A. Zwijnenburg
[2010] ECR I-4303, paragraph 46.
(47)  –	See, for example, Joined Cases C-260/91 and C-261/91 Diversinte and Iberlacta
[1993] ECR I-1885, paragraphs 12 and13.
(48)  –	See, inter alia, Case C-310/04 Spain
v Council [2006] ECR I-7285, paragraphs 57 to 59.
(49)  –	Case C-309/10 Agrana Zucker
[2011] ECR I-7333, paragraphs 37 to 39.
(50)  –	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.
(51)  –	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.
(52)  –	See, inter alia, Diversinte and Iberlacta, paragraph 13.
(53)  –	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.
(54)  –	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.
(55)  –	See footnote 41 above.