EN Official Journal of the European Union C 113/51

Action brought on 15 February 2010 — Zuckerfabrik Jülich AG v European Commission

(Case T-66/10)

2010/C 113/82

Language of the case: German

Parties

Applicant: Zuckerfabrik Jülich AG (Jülich, Germany) (represented by: H.-J. Prieß and B. Sachs, lawyers)

Defendant: European Commission

Form of order sought

— Annul 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;

— Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant puts forward six pleas in law in support of its action.

First, the applicant pleads an infringement of Article 233 EC (Article 266 TFEU) by analogy, because the Commission has not given effect to the requirements of the judgment of the Court of Justice in Joined Cases C-5/06 and C-23/06 to C-36/06 Zuckerfabrik Jülich and Others [2008] ECR I-3231. In that judgment the Court explained how the parameters of the “exportable surplus” and the “total tonnage of export obligations to be fulfilled” are to be determined in the calculation of the production levies for the marketing years 2002/2003 to 2005/2006. The applicant submits that in the contested regulation the Commission also altered the third parameter, “total amount of refunds”, even though this was not the subject matter of Joined Cases C-5/06 etc.

Second, the Commission infringed Article 15(1)(d) of Regulation (EC) No 1260/2001 (1) and the spirit and purpose of that regulation. It submits, inter alia, that when calculating the total amount of refunds the Commission included refunds for exports which had not been claimed and paid. Moreover, the flat-rate approach of monthly exports leads to inaccuracies in the calculation. In Joined Cases C-5/06 etc the Court prohibited the total loss from being set at an amount higher than expenditure for the refunds.

Third, the Commission infringed the principle prohibiting retroactive effects, as the contested regulation altered the total amount of refunds retroactively.

Fourth, when the Commission adopted a production levy regulation for the 2002/2003 to 2005/2006 marketing years on 3 November 2009, it no longer had power to do so, because Regulation No 1260/2001, which the Commission indicated as the legal basis, was no longer in force when the Regulation was adopted, there was no other legal basis under secondary law and, according to the relevant rules of the EC Treaty, it was the Council and not the Commission which had such power.

Fifth, there was an infringement of Article 37(2) EC, because on the basis of that provision a different procedure should have been chosen for the adoption of the Regulation.

Finally, the Commission infringed its obligation to state reasons under Article 253 EC (Article 296, second paragraph, TFEU), as the reason given by the Commission for the contested regulation is that it implements the judgment in Joined Cases C-5/06 etc, but, in the applicant’s view, that decision goes beyond the requirements of that judgment.

(1) Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector (OJ 2001 L 178, p. 1).