EN Official Journal of the European Union C 113/58

Action brought on 17 February 2010 — British Sugar v Commission

(Case T-86/10)

2010/C 113/90

Language of the case: English

Parties

Applicant: British Sugar plc (London, United Kingdom) (represented by: K. Lasok, QC, G. Facenna, Barrister, W. Robinson, P. Doris and D. Das, Solicitors)

Defendant: European Commission

Form of order sought

— annul the contested measure;

— order the Commission to pay the applicant’s legal and other costs and expenses in relation to this matter.

Pleas in law and main arguments

The applicant seeks the annulment of Commission Regulation (EC) No 1193/2009 of 3 November 2009 correcting Regulations (EC) No 1762/2003, (EC) No 1775/2004, (EC) No 1686/2005, (EC) No 164/2007 and fixing the production levies in the sugar sector for marketing years 2002/2003, 2003/2004, 2004/2005, 2005/2006 (1).

The applicant puts forward the following pleas in law in support of its claims.

First, it submits that the Commission failed to adopt the measures necessary to comply with the Court’s judgments in Jülich (2) and SAFBA (3) Cases by which the Court declared invalid Commission Regulations (EC) Nos 1762/2003 (4), 1775/2004 (5) and 1686/2005 (6). The applicant claims that, as a result of the judgments in Jülich and SAFBA, the Commission was under an obligation and therefore had the competence to take the measures necessary to rectify the illegality identified in those judgments. That obligation and that competence were limited to adopting the measures necessary to secure the restoration to the persons concerned (including the applicant) of the amounts that they had been unlawfully required to pay in the marketing years in question. Those amounts were and are, in the applicant’s submission, identifiable by applying the formula used in the regulations held by the Court to be invalid subject to the correction of the error identified by the Court. The applicant contends therefore that in breach of that obligation, and acting outside that competence, the Commission adopted the contested measure, which is vitiated by the same fundamental defect that led the Court of Justice to invalidate Regulations (EC) Nos 1762/2003, 1775/2004 and 1686/2005.

Second, the applicant claims, that the method of calculating the sugar levies that has been adopted in the contested measure is contrary to the Court’s conclusion in Jülich case.

Third, the applicant argues that the Commission lacked competence to adopt the contested measure under Regulation (EC) No 1260/2001 because, in the applicant’s opinion;

— that regulation had been repealed and was not in force at the time the contested measure was adopted; and

— the effect of the judgment in Jülich that the Commission had no competence to determine production levies in a manner inconsistent with Article 15 of that regulation. In the absence of competence by reason of the judgments Jülich and SAFBA or Regulation No 1260/2001 competence to set production levies is held by the Council under what is now Article 43 TFEU. Accordingly, the Commission had no competence at all to adopt the contested measure.

(1) OJ 2009 L 321, p. 1

(2) Joined Cases C-5/06 and C-23/06 to C-36/06, Zuckerfabrik Jülich, [2008] ECR I-3231

(3) Joined Cases C-175/07 to C-184/07 SAFBA, [2008] ECR I-142

(4) Commission Regulation (EC) No 1762/2003 of 7 October 2003 fixing the production levies in the sugar sector for the 2002/03 marketing year, OJ 2003 L 254, p. 4

(5) Commission Regulation (EC) No 1775/2004 of 14 October 2004 setting the production levies in the sugar sector for the 2003/04 marketing year, OJ 2004 L 316, p. 64

(6) Commission Regulation (EC) No 1686/2005 of 14 October 2005 setting the production levies and the coefficient for the additional levy in the sugar sector for the 2004/05 marketing year OJ 2005 L 271, p. 12