Case T-257/04

Republic of Poland

v

Commission of the European Communities

‛Agriculture — Common organisation of the markets — Transitional measures to be adopted by reason of the accession of new Member States — Regulation (EC) No 1972/2003 laying down measures in respect of trade in agricultural products — Action for annulment — Period within which proceedings must be commenced — Point from which time starts to run — Delay — Amendment of a provision of a regulation — Re-opening of the action against that provision and against all provisions forming a body of rules with it — Partial admissibility — Proportionality — Principle of non-discrimination — Legitimate expectations — Statement of reasons’

Judgment of the Court of First Instance (First Chamber, Extended Composition), 10 June 2009 II ‐ 1553

Summary of the Judgment

The Act concerning the conditions of accession to the European Union 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 provides specifically for the possibility of the Community institutions adopting certain measures between the date on which the Act of Accession was signed and the date on which the new Member States acceded, without, however, laying down any temporary exceptions to the system of judicial review of the legality of Community measures. The Community rules concerning procedural time-limits must be strictly applied and may not be derogated from save where the circumstances are quite exceptional, in the sense of being unforeseeable or amounting to force majeure. Thus, the period laid down in Article 230 EC within which proceedings must be brought is of general application and that article does not lay down the date on which the abovementioned Act of Accession entered into force as the start of that period in respect of legal acts adopted on the basis thereof. Therefore, even if a regulation such as Regulation No 1972/2003 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 was different, in regard to those Member States, from the rest of the acquis communautaire as regards the time at which it was implemented and the group to which it was addressed, inasmuch as was addressed to all of the Member States, including the Member States which joined the European Union in 2004, that would not prevent the period within which proceedings had to be brought from running from the publication of the regulation at issue. That does not deprive those States of a right of action against measures adopted after the signature of the Act of Accession and before their accession to the European Union. Although non-member countries, including new Member States before accession, cannot claim the status of litigant conferred on the Member States by the Community system, they may bring proceedings under the right of action conferred on legal persons once they fulfil the objective conditions prescribed. (see paras 44, 46-48, 52, 53)

Although the definitive character of a measure which has not been challenged within the time-limit concerns not only the measure itself but also any later measure which is merely confirmatory, an approach which is justified by the requirement of legal stability and applies to individual measures as well as to those which have a legislative character, such as a regulation, where a provision in a regulation is amended, a fresh right of action arises, not only against that provision alone, but also against all the provisions which, even if not amended, form a whole with it. A Community act under which products are added to a list cannot but form a whole with the provisions of another Community act which lay down the measures to which the products on that list are subject because, if the position were otherwise, the act under which the products were added to the list would be deprived entirely of legal effect. Moreover, a person who has locus standi to bring an action against a Community act under which products on a list are made subject to certain measures but fails to bring his action within the required time-limit cannot, on that ground, be prevented from raising, in the context of an action against another act under which products have been added to the list at issue, the illegality of the measures to which those additional products are henceforth subject. Such measures constitute new measures in regard to the products added to the list by the second act adopted. The second act adopted cannot therefore be regarded as purely confirmatory in regard to those measures. (see paras 70-72)

The first paragraph of Article 41 of the Act concerning the conditions of accession to the European Union 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 allowed the Commission to require the new Member States to levy a charge on surplus stocks of the agricultural products which existed in their territories and were covered by Regulation No 1972/2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of those States. On the one hand, both prevention of the build-up of stocks for speculative purposes and the neutralisation of the economic advantages which would have accrued to operators who had built up surplus stocks at low prices are capable of justifying the adoption by the Commission of a measure under the first paragraph of Article 41 of the Act of Accession and, on the other, that the levying of a charge on surplus stocks must be regarded as intended to facilitate the transition of the new Member States to the common organisation of the markets inasmuch as it reduces the burden of the obligation imposed on the new Member States by Annex IV, Chapter 4, paragraph 2, to the Act of Accession to eliminate such stocks at their own expense. (see paras 101, 102)

The Commission may exercise a wide discretion when exercising the powers conferred on it by the Council, or indeed those who drafted the Act of Accession, in regard to the common agricultural policy for the implementation of the rules which it lays down, with the result that the legality 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. The fixing of the amount of the charge on surplus stocks of certain agricultural products on the basis of the erga omnes import duty applicable on 1 May 2004, as provided for in Article 4(3) of Regulation No 1972/2003 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 does not manifestly exceed what was necessary to prevent the build-up of surplus stocks from whatever source. The objective which the Commission was pursuing by means of the charge at issue 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. That is clear from recital 3 in the preamble to Regulation No 1972/2003. The approach adopted by the Commission is consistent with the idea which those who drafted the Act concerning the conditions of accession to the European Union 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 had of surplus stocks to be eliminated at the expense of the new Member States. It is clear from Annex IV, Chapter 4, paragraphs 1 and 2, to that Act that the existence of surplus stocks resulting from national production in the new Member States disturbed the common organisation of agricultural markets. Those who drafted the said Act of Accession in no way limited the abovementioned obligation solely to stocks arising from trade. Finally, Article 4(2) of Regulation No 1972/2003 leaves the new Member States a certain discretion in determining whether the stocks of the products at issue located in their territory were the result of activity justified by normal conduct in the market, which allowed them, in such a case, not to classify them as ‘surplus stocks’. That 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 and reinforces the proportionate nature of the measure referred to in Article 4(3) of that regulation in regard to the objective pursued. (see paras 106, 111-113, 120)

The principle of non-discrimination between producers or consumers in the Community, laid down in regard to the common organisation of agricultural markets in the second subparagraph of Article 34(2) EC, requires that comparable situations should not be treated in a different manner, or different situations treated in the same manner, unless such treatment is objectively justified. Measures taken under the common organisation of the market must therefore not be differentiated according to regions and other conditions relating to production or consumption except on the basis of objective criteria which ensure that the advantages and disadvantages are distributed proportionately among those concerned, without any distinction being made between the territories of the Member States. The agricultural situation in the new Member States was radically different from that in the old Member States since, before enlargement of the European Union in 2004, those two categories of traders were subject to different rules, quotas and production support mechanisms. Moreover, although the Community institutions could prevent the build-up of surplus stocks within the Community by methods specific to the common organisation of agricultural markets, they could not prevent the build-up of surplus stocks in the territory of the future Member States. It is for that reason that Annex IV, Chapter 4, paragraphs 1 to 4, to the abovementioned Act of Accession imposed an obligation on the new Member States to eliminate their surplus stocks at their own expense without imposing a parallel obligation on the old Member States. Since the agricultural situation in the new Member States was different from that in the old Member States, 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. (see paras 128-130, 199, 200)

Levying of the charge imposed by Article 3 of Regulation No 1972/2003 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 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. Furthermore, the Commission adopted that regulation, and, consequently, Article 3 thereof, on the basis of a provision which allowed it to adopt the transitional measures necessary to facilitate the transition from the rules existing in the new Member States to those resulting from the application of the common agricultural policy, that is to say, Article 41 of the Act concerning the conditions of accession to the European Union 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. However, those transitional measures could constitute, inter alia, derogations from the rules which would otherwise apply to a given legal situation, such as Article 25 EC. (see paras 179, 180)

The statement of reasons required by Article 253 EC, in the case of a regulation, may be limited to indicating the general situation which led to its adoption, on the one hand, and the general objectives which it is intended to achieve, on the other. 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. In that regard, the Commission was not required to provide a more specific statement of reasons for the measures referred to in Article 3 of Regulation No 1972/2003 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, since the reasons given for that regulation expressly identify the objective of preventing the build-up of surplus stocks and the need to introduce a system of charges on such stocks (recital 3) as well as the general situation which led to the adoption of that regulation (recitals 1 and 3, read together). The statement of reasons at issue must therefore be regarded as being sufficient in that regard. (see paras 214, 216, 217, 234)