OPINION OF ADVOCATE GENERAL

STIX-HACKL

delivered on 16 May 2006 1( )

Case C-68/05 P

Koninklijke Coöperatie Cosun UA

v

Commission of the European Communities

(Appeal – Admissibility of new arguments – Remission of an import levy – Sugar – Regulation (EEC) No 1430/79 – Equity)

I – Introductory comments

1. The present appeal proceedings essentially concern the question whether the charge on non-exported C sugar is to be regarded as an import or export levy within the meaning of customs legislation. ( ) On 2 May 2002 the Commission of the European Communities adopted a decision ( ) declaring an application for the remission of import duties to be inadmissible. The appeal is against the judgment of the Court of First Instance of 7 December 2004 ( ) dismissing the action brought against that decision.

II – Legislative background

A – The common organisation of the markets in the sugar sector

2. Council Regulation (EEC) No 1785/81 of 30 June 1981 on the common organisation of the markets in the sugar sector ( ) (‘the basic regulation’) governs the production, importation and exportation of sugar. It provides inter alia for a system of production quotas which, according to the 15th recital in its preamble, constitutes a means of guaranteeing producers Community prices and an outlet for their production.

3. Under that quota system, Article 24 of the basic regulation fixes for each marketing year (that is to say, from 1 July in one year until 30 June in the following year) basic quantities for ‘A sugar’ and ‘B sugar’, to be allocated by each Member State to the sugar-producing undertakings established in its territory. Each producing undertaking is thus allocated one A quota and one B quota for each marketing year. Any quantity of sugar which is produced outside the sum of its A and B quotas is termed ‘C sugar’ or ‘non-quota sugar’.

4. The conditions governing the disposal of sugar vary according to its categorisation. A sugar and B sugar are the subject of various support mechanisms laid down in the basic regulation, with A sugar benefiting from a higher level of guarantees (guaranteed intervention prices and export aid in the form of refunds) than that afforded to B sugar (export refunds only).

5. C sugar is not eligible for the price support system nor for the export refunds system. Furthermore, C sugar may not be disposed of on the internal market and must, accordingly, be disposed of outside the Community and sold on the world market.

6. Article 26 of the basic regulation provides in that regard:

‘1. … C sugar which is not carried forward … may not be disposed of on the Community’s internal market and must be exported in the natural state before 1 January following the end of the marketing year in question.

…

3. Detailed rules for the application of this article shall be adopted in accordance with the procedure laid down in Article 41.

These rules shall provide, in particular, for the levying of a charge on the C sugar … referred to in paragraph 1 in respect of which proof of its export in the natural state within the prescribed period was not furnished at a date to be determined.’

7. Commission Regulation (EEC) No 2670/81 of 14 September 1981 laying down detailed implementing rules in respect of sugar production in excess of the quota ( ) specifies the circumstances in which exports of C sugar shall be considered to have taken place. Article 1 of that regulation, in the version brought into force by Commission Regulation (EEC) No 3892/88 of 14 December 1988 amending Regulation (EEC) No 2670/81, ( ) provides in particular:

‘1. The export referred to in Article 26(1) of [the basic regulation] shall be considered to have taken place if:

(a) the C sugar … is exported from the Member State on whose territory it was produced;

(b) the export declaration in question is accepted by the Member State referred to under (a) before 1 January following the end of the marketing year during which the C sugar … was produced;

(c) the C sugar … left the customs territory of the Community at the latest within 60 days from 1 January referred to under (b);

(d) the product has been exported without refund or levy … from the Member State referred to under (a).

Except in the case of force majeure, if all of the conditions provided for in the first subparagraph are not complied with, the quantity of C sugar … in question shall be considered to have been disposed of on the internal market.

In the case of force majeure, the competent agency of the Member State on whose territory the C sugar … has been produced shall adopt the measures which are necessary by virtue of the circumstances invoked by the interested party.’

8. Article 3 of Regulation No 2670/81, as amended by Article 1 of Commission Regulation (EEC) No 3559/91 of 6 December 1991 amending Regulation No 2670/81, ( ) is worded as follows:

‘1. The Member State concerned shall impose on the quantities which, within the meaning of Article 1(1), have been disposed of on the internal market a charge equal to the sum of:

(a) for C sugar, per 100 kilograms:

– the highest import levy per 100 kilograms of white or raw sugar, as the case may be, applicable during the period comprising the marketing year during which the sugar in question was produced and the six months following that marketing year, and

– 1 [euro];

…

4. In the case of quantities of C sugar … which prior to export were destroyed or damaged without possibility of recovery, in circumstances recognised by the competent agency of the Member State concerned as a case of force majeure, the relevant amount referred to in paragraph 1 shall not be levied.’

B – The equity clause in the Community customs legislation

9. The Community customs legislation allows for the repayment in whole or in part of import or export duties paid or for a remission of the amount of a customs debt. The conditions for remission are set out in Article 13 of Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties. ( )

10. Article 13(1) provides:

‘Import duties may be repaid or remitted in special situations …, which result from circumstances in which no deception or obvious negligence may be attributed to the person concerned.

…’

11. Article 14 of Regulation No 1430/79 states that the provisions of Article 13 are to apply mutatis mutandis to the repayment or remission of export duties.

1. 12. Article 1(2)(a) of Regulation No 1430/79 provides that ‘import duties’ means ‘customs duties and charges having equivalent effect, as well as agricultural levies and other import charges laid down within the framework of the common agricultural policy or in that of specific arrangements applicable, pursuant to Article 235 of the Treaty [now Article 308 EC], to certain goods resulting from the processing of agricultural products’.

2. 13. Article 1(2)(b) of Regulation No 1430/79 states that ‘export duties’ means ‘agricultural levies and other export charges laid down within the framework of the common agricultural policy, or in that of specific arrangements applicable, pursuant to Article 235 of the Treaty, to certain goods resulting from the processing of agricultural products’.

III – The facts of the case, the proceedings before the Court of First Instance and the judgment under appeal

A – Facts of the case

12. Koninklijke Coöperatie Cosun UA (‘Cosun’ or ‘the appellant’), which is a cooperative established in the Netherlands, produced C sugar during the marketing years 1991/92 and 1992/93. Between 10 February and 23 September 1993, acting through its subsidiary Limako Suiker BV, it sold to the company Django’s Handelsonderneming a number of consignments of C sugar intended for export to Croatia and Slovenia. Between 22 July and 16 August 1993 and between 26 August and 24 September 1993, Cosun sold consignments of C sugar to the companies NV Voeders SA Aliments Serry and Sieger BV which were intended for Morocco.

13. On 24 June 1993, the Nederlandse Fiscale Inlichtingen- en Opsporingsdienst (Netherlands Tax Inquiry and Investigation Department; ‘FIOD’) requested the Hoofdproduktschap Akkerbouw (‘HPA’), the competent authority in the Netherlands for the application of the provisions relating to the common organisation of markets, including the sugar market, to provide information for the purposes of an investigation relating in particular to Django’s Handelsonderneming. The HPA provided the FIOD with information concerning irregularities relating to customs documents for operations involving exports of C sugar. The FIOD asked the HPA to maintain a certain distance in its dealings with Cosun, in view of the investigation that was being undertaken. The irregularities found in the export documents received by the HPA gave rise to the opening of a judicial inquiry into allegations of fraud against Django’s Handelsonderneming.

3. 16. In June and August 1993, the HPA contacted Cosun and its subsidiary Limako Suiker to inform them of the incorrect stamping of the customs documents for the goods intended for Croatia and Slovenia. In October 1993, incorrectly stamped documents relating to consignments of sugar intended for Morocco were received by the HPA.

4. 17. On 14 October 1993, the Netherlands authorities provided Cosun with a statement of the numbers of the export forms in relation to which there was no proof of export from the Community.

5. 18. On 25 April 1994, the HPA imposed a charge on Cosun of NLG 6 284 721.03, on the ground that it had failed to prove that a certain number of consignments of C sugar had left the territory of the Community for the specified destinations in Croatia, Slovenia and Morocco. On 13 June 1994, the amount of the levy was reduced to NLG 6 250 856.78, that is to say EUR 2 836 515.14, by reason of an error made in the original calculation.

6. 19. On 18 May 1994, Cosun lodged an objection with the HPA in relation to the levy imposed. On 19 June 1995, that objection was rejected by the HPA. On 14 July 1995, Cosun brought an appeal against that decision before the College van Beroep voor het bedrijfsleven (Administrative Court for Trade and Industry; ‘CBB’).

7. 20. The CBB referred two questions to the Court for a preliminary ruling under Article 234 EC in the context of the dispute between Cosun and the HPA over the charge imposed on Cosun because of its failure to export the quantities of C sugar in question. ( ) By the first question, the CBB seeks to establish whether, if the possibility of remission under Article 13 of Regulation No 1430/79 is not applicable to levies, the basic regulation and Regulation No 2670/81 are invalid in view of the absence of the possibility of repaying or remitting levies on C sugar on equitable grounds. With the second question, the CBB seeks to establish what effects the invalidity of those regulations would have on the obligation to pay the levy on C sugar in circumstances such as those obtaining in the present case.

8. 21. On 24 April 1995, Cosun applied to the HPA for remission of duties charged, under Article 239 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code ( ) and Article 905 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92. ( ) On 6 August 2001, the Kingdom of the Netherlands applied to the Commission for remission of the import duties, for the benefit of Cosun.

9. 22. On 2 May 2002, the Commission adopted Decision REM 19/01 declaring the application for remission of import duties presented by the Kingdom of the Netherlands for the benefit of Cosun to be inadmissible. On the basis of that decision, the HPA informed Cosun on 6 June 2002 that its application for remission was inadmissible.

B – The proceedings before the Court of First Instance and the judgment under appeal

10. 23. Cosun then instituted proceedings before the Court of First Instance seeking the annulment of Commission Decision REM 19/01 of 2 May 2002. Cosun applied for the contested decision to be declared void and for the Commission to be ordered to pay the costs of the proceedings. The Commission applied for the action to be dismissed as unfounded and for Cosun to be ordered to pay the costs of the proceedings.

11. 24. By judgment of 7 December 2004, the Court of First Instance dismissed the action for annulment in Case T-240/02 Koninklijke Coöperatie Cosun v Commission.

IV – Forms of order sought and grounds of appeal

12. 25. Cosun appealed to the Court of Justice against the judgment of the Court of First Instance and requested that

– the judgment under appeal be set aside;

– a final decision be taken on the legal dispute, through the setting-aside of the contested decision;

– in the alternative, the case be referred back to the Court of First Instance;

– the Commission be ordered to pay the costs of the proceedings at first instance and of the appeal proceedings.

13. 26. Cosun bases its appeal on four grounds. First, it alleges breach of Community law in that the Court of First Instance found that the charge on non-exported C sugar was not an import or export duty within the meaning of Article 13 of Regulation No 1430/79.

14. 27. Second, Cosun claims, in the alternative, that the Court of First Instance failed to recognise that the charge on non-exported C sugar was indeed treated as an import levy for the purposes of the applicability of Regulation No 1430/79. According to this ground of appeal, which is divided into three parts, the Court of First Instance failed to recognise that:

– the charge on non-exported C sugar should be regarded as a customs duty since it serves the same purpose as a customs duty;

– the manner in which the charge on non-exported C sugar is determined indicates that the charge should be regarded as a customs duty;

– the manner in which the amount to be recovered on non-exported C sugar is determined indicates that the charge is to be regarded as a customs duty.

15. 28. Third, Cosun claims, in the alternative, that, when examining the second and third grounds of appeal raised in the alternative by the appellant in its application, the Court of First Instance breached Community law. This ground is divided into two parts:

– When examining the second ground of appeal raised by the appellant in the application submitted to the Court of First Instance, the latter exceeded the limits of the legal dispute.

– The Court of First Instance was wrong to ignore the third ground of appeal raised by the appellant in the alternative.

16. 29. Fourth, Cosun complains, in the alternative, of a breach of the principles of equal treatment, legal certainty and equity.

17. 30. The Commission, on the other hand, requests that the appeal be dismissed partly as inadmissible and partly as unfounded.

V – The first ground of appeal

A – Arguments of the parties

18. 31. Cosun takes the view that the Court of First Instance committed an error of law by finding in paragraphs 36 to 38 and 47 of the judgment under appeal that the charge on C sugar was not an agricultural import or export levy within the meaning of Article 1(2)(a) and (b) of Regulation No 1430/79.

19. 32. The Court of First Instance also failed in its duty to give a statement of reasons by interpreting the term ‘agricultural levy’ narrowly and not explaining why a wider interpretation must be excluded.

20. 33. In contrast, the Commission contends that the Court of First Instance did not in any way interpret the term ‘agricultural levy’ narrowly, but rightly decided that the charge on C sugar could not be formally regarded as an agricultural import or export levy within the meaning of Article 1(2)(a) and (b) of Regulation No 1430/79.

B – Analysis

21. 34. As regards the appellant’s argument that the Court of First Instance committed an error of law in failing to state the precise reasons for its very narrow interpretation of Article 1(2)(a) and (b) of Regulation No 1430/79, reference must be made to the statement of reasons given by the Court of First Instance in paragraphs 35 to 38 of the judgment under appeal.

22. 35. The Court of First Instance gives essentially three reasons for the interpretation which it chose.

23. 36. First, it rightly points out that the charge imposed on C sugar does not come within any of the three categories listed conclusively in the provisions cited: first, customs duties, second, charges having equivalent effect, and, third, agricultural levies and other import or export charges laid down within the framework of the common agricultural policy or in that of specific arrangements applicable, pursuant to Article 308 EC, to certain goods resulting from the processing of agricultural products.

24. 37. Second, it states that the charge falls to be levied where there is an absence of proof, on the date by which such proof requires to have been furnished, of the export of a quantity of C sugar within the prescribed period and that the charge is therefore imposed on a producer of C sugar by reason of the fact that that non-quota sugar, which was produced within the Community, was disposed of on the internal market.

25. 38. Third, the Court of First Instance also makes a detailed examination to determine whether the amount imposed on C sugar comes within one of the three categories.

26. 39. As regards the possible classification of the charge as a customs duty, the Court of First Instance emphasises that the charge imposed on C sugar does not constitute a customs duty, that is to say a duty based on the Common Customs Tariff of the European Communities, in terms of Articles 23 EC and 26 EC.

27. 40. Nor, the Court of First Instance argues on the basis of settled case-law, ( ) is it a charge having equivalent effect, such a charge being constituted by any pecuniary charge, whatever its designation and mode of application, which is imposed unilaterally on goods by reason of the fact that they cross a frontier, and which is not a customs duty in the strict sense.

28. 41. Lastly, the Court of First Instance explains why the amount in question is not strictly an agricultural charge on imports or exports, emphasising that it is not a levy charged on agricultural products by reason of their crossing the external frontiers of the Community.

29. 42. The appellant’s first argument is thus unfounded.

30. 43. Second, the appellant alleges that the Court of First Instance did not state the reasons for ruling out a less narrow interpretation of Article 1(2)(a) and (b) of Regulation No 1430/79.

31. 44. It should be pointed out in this respect that the Court of First Instance does not confine itself to an interpretation of the wording of the provision at issue. Instead, it continues the statement of reasons in paragraphs 39 to 46 of its judgment before reaching its final conclusion in paragraph 47.

32. 45. Thus, the Court of First Instance considers the objective – whether the amount charged on non-exported C sugar pursues the same objective as customs duties. In this context, the Court of First Instance emphasises that the levy imposed on non‑quota sugar that is not exported forms part of the mechanisms of the common organisation of the market in sugar. It points out that those mechanisms aim to ensure the attainment of common objectives, in particular that the necessary guarantees in respect of employment and standards of living of producers, the guaranteeing of sugar supplies to all consumers, a certain level of prices and the stability of the sugar market are maintained.

33. 46. On that basis, the Court of First Instance stresses that each of the mechanisms referred to pursues specific objectives or responds to particular needs. The Court of First Instance therefore concludes that the charge on production which applies to C sugar clearly does not pursue the same objectives as a customs duty or the same objectives as the import levies and export refunds provided for under the common organisation of the market in sugar.

34. 47. In addition, the Court of First Instance analyses the aims of the common trading system at the external frontiers of the Community in general and of the common organisation of the market in sugar in particular. In this context, the Court of First Instance clearly emphasises the importance of the prohibition of disposing of C sugar on the internal market and explains at length the significance of the penalties imposed for breaching that prohibition. According to the Court of First Instance, however, the fact that the amount to be classified as a penalty is calculated on the basis of import levies does not make it an import duty.

35. 48. In view of the statement of reasons given by the Court of First Instance, the appellant’s second argument must similarly be regarded as unfounded.

36. 49. The first ground of appeal must accordingly be dismissed as unfounded.

VI – The second ground of appeal

A – Admissibility

1. Arguments of the parties

37. 50. The Commission maintains that the second ground of appeal is inadmissible primarily because it reproduces the pleadings and arguments previously submitted to the Court of First Instance and in reality amounts to no more than a request for re-examination of the application, which falls outside the jurisdiction of the Court of Justice.

38. 51. In its reply, Cosun explains that with its second ground of appeal it is not in any way seeking to have the original application re-examined, but that it is claiming that the Court of First Instance interpreted and applied Community law incorrectly, from which it followed that the appeal is admissible.

2. Analysis

39. 52. As regards the admissibility of the second ground of appeal, reference must be made to the settled case-law of the Court of Justice, according to which an appeal is inadmissible if it merely reproduces the pleas in law and arguments previously submitted to the Court of First Instance without even including an argument specifically identifying the error of law allegedly vitiating the judgment under appeal. In reality, such an appeal amounts to no more than a request for re-examination of the application submitted to the Court of First Instance, which falls outside the jurisdiction of the Court of Justice. ( )

40. 53. According to this case-law, the second ground of appeal would be inadmissible if the appellant did no more than reproduce submissions made at first instance on the alleged lack of a statement of reasons for the disputed decision, without any indication of the error of law which the Court of First Instance is alleged to have made in the judgment under appeal. ( )

41. 54. These comments by the Court of Justice must not, of course, be seen in absolute terms or in isolation.

42. 55. Where an appellant challenges the interpretation or application of Community law by the Court of First Instance, points of law examined at first instance may be discussed again in the course of an appeal since, if an appellant could not thus base his appeal on pleas in law and arguments already relied on before the Court of First Instance, an appeal would be deprived of part of its purpose. ( )

43. 56. In the present case, however, the second ground of appeal seeks to contest the assessment by the Court of First Instance of a point of law which was referred to it. The appellant accurately specifies the error of law of which the Court of First Instance is accused and so opposes the interpretation of Community law on which it is based. ( )

44. 57. The second ground of appeal is thus admissible.

B – The substance

1. Arguments of the parties

45. 58. According to Cosun, the Court of First Instance committed an error of law even if the charge on C sugar did not formally correspond to the concept of import or export levy within the meaning of Article 1(2)(a) and (b) of Regulation No 1430/79, since in paragraphs 40 to 46 of the judgment under appeal the Court of First Instance rejected Cosun’s argument that the amount levied on C sugar should be regarded as an import levy within the meaning of Article 13 of Regulation No 1430/79 since it pursued the same objectives as a customs duty which was calculated on the basis of the import levies applicable to sugar and was intended to ensure that sugar produced in excess of quotas and not exported was subjected to conditions comparable to those applicable to sugar imported from third countries.

46. 59. The Commission, which considers that ground of appeal to be inadmissible, requests the Court of Justice in the alternative to dismiss that ground of appeal as unfounded.

2. Analysis

47. 60. The appellant complains, firstly, that the Court of First Instance failed to recognise that the charge levied on C sugar pursued the same objective as customs duties. In this respect, the appellant criticises the Court of First Instance for not indicating the specific objective of the charge on C sugar and how its objective differed from that of customs duties.

48. 61. As is evident from the judgment of the Court of First Instance, and especially paragraphs 43, 44 and 45 thereof, that Court not only considered the objectives of import levies and export refunds but also explained the objectives of the system of the common organisation of the sugar market and, in this context, the significance of the arrangement relating to C sugar, including the charge.

49. 62. The first part of the second ground of appeal should therefore be dismissed as unfounded.

50. 63. In the second ground of appeal, the appellant also complains that the Court of First Instance failed to realise that it follows from the manner in which the amount levied on non-exported C sugar is calculated that that charge should be regarded as a customs duty.

51. 64. In this respect, it is enough to refer to paragraphs 44, 45 and 46 of the judgment of the Court of First Instance, from which it is clear that the fact that the calculation of the amount of the charge must be based on import levies does not mean that the charge becomes such a levy.

52. 65. As for the appellant’s reliance on a recital in the preamble to Regulation (EEC) No 2645/70, ( ) it must be pointed out that the latter is an implementing regulation, which is, moreover, no longer in force.

53. 66. With regard to the legal effect of Regulation No 2645/70 or of the regulation which is the subject of the present proceedings, Regulation No 2670/81, it must also be pointed out that these are Commission regulations. Although they implement Council regulations, they cannot amend fundamental legal classifications effected in superior legislation or effect a legal classification for which such legislation does not provide, such as legal classification as an import levy.

54. 67. The second ground of appeal should therefore be dismissed as unfounded.

VII – The third ground of appeal

A – Arguments of the parties

55. 68. In the first part of the third ground of appeal, Cosun argues that in its analysis of the second plea in law the Court of First Instance gave judgment outside the scope of the legal dispute limited by the application.

56. 69. Although that plea had not questioned the validity of Regulation No 2670/81, the Court of First Instance had implicitly undertaken an examination of the validity of the general legal principles in paragraphs 58 to 62 of the judgment under appeal. By so doing, it had given judgment outside the scope of the legal dispute defined by Cosun’s application and consequently breached the procedural principle which states that the application determines the limits to the legal dispute.

57. 70. On the first part of the third ground of appeal, the Commission declares that it is by no means evident from paragraphs 58 to 62 of the judgment under appeal that the Court of First Instance had examined the validity of Regulation No 2670/81.

58. 71. In the second part of the third ground of appeal, Cosun argues that the Court of First Instance was wrong to refuse to analyse the third plea in law, in which the appellant had contended that the Commission was obliged to examine the application for remission outside the context of the aforementioned regulation on the basis of the principles of legal certainty, equality and equity if Article 13 of Regulation No 1430/79 was not applicable.

59. 72. On the second part of the third ground of appeal, the Commission argues that the pleas in law termed by Cosun as the ‘second’ and ‘third’ were analysed together by the Court of First Instance as the ‘first part of the second plea in law’ and the ‘second part of the second plea in law’. Consequently, the Court of First Instance had indeed analysed the ‘third’ plea in law in paragraphs 57 to 62 of the judgment under appeal.

B – Analysis

60. 73. The first part of the third ground of appeal essentially concerns the question whether the Court of First Instance exceeded the limits of the legal dispute. In accusing the Court of First Instance of having examined the validity of a legal act, namely Regulation No 2670/81, about whose illegality it had not complained as applicant before the Court of First Instance, the appellant has surely seriously misunderstood the wording of the judgment.

61. 74. Although the Court of First Instance makes reference to the cited regulation in paragraphs 56 to 62, it does not examine its validity. It cites this legal act rather so that a full description may be given of the pertinent legal situation. Regulation No 2670/81 is clearly one of the legal sources which are decisive for the charge on C sugar.

62. 75. Before the Court of First Instance, the appellant complained that three legal principles had been breached by the Commission. During its consideration of a possible derogation on grounds of equity, the Court of First Instance referred in paragraph 58 to a derogation from the imposition of the charge on C sugar for which explicit provision is made and infers from this that a derogation from the imposition was inadmissible in other cases. As the rules concerning derogation are set out in Regulation No 2670/81, that legal act naturally had to be cited.

63. 76. Similarly, the Court of First Instance referred to Regulation No 2670/81 in paragraph 62, in the context of the principle of legal certainty. Here again, the Court of First Instance was forced to cite a provision of that regulation as the legal source of the charge owed.

64. 77. It is not only a legally careful reading of the comments of the Court of First Instance that shows the arguments presented by the appellant in the first part of the third ground of appeal to be obviously unfounded.

65. 78. As regards the appellant’s complaint in the second part of the third ground of appeal that the Court of First Instance had not examined its third plea in law, the structure of the judgment and the proceedings before the Court of First Instance need to be considered.

66. 79. While the second plea in law before the Court of First Instance concerns only the principles of equality and equity, the third plea refers to the principles of legal certainty, equality and equity.

67. 80. The Court of First Instance examined all these principles. It discusses the principle of equality in paragraphs 59 to 61. It considers a possible derogation on grounds of equity in paragraphs 57 and 58. The principle of legal certainty, finally, is the subject of paragraph 62.

68. 81. Thus the Court of First Instance considers all three legal principles. The appellant’s difficulty in finding its pleas in law in the judgment may be partly due to the fact that they overlap to some extent. Moreover, to ensure a better understanding, the Judge-Rapporteur in the proceedings before the Court of First Instance had already structured the pleas in law more clearly in his report for the hearing.

69. 82. The third ground of appeal as a whole should thus be dismissed as unfounded.

VIII – The fourth ground of appeal

A – Admissibility

1. Arguments of the parties

70. 83. The Commission considers the fourth ground of appeal to be inadmissible. It contends that the first and second parts of the ground of appeal reproduce the pleas in law presented before the Court of First Instance and do not therefore satisfy the conditions for a statement of reasons pursuant to Article 58(1) of the Statute of the Court of Justice and Article 112(1), first paragraph, (c), of the Rules of Procedure of the Court of Justice. The third part of the fourth ground of appeal, concerning the difference in the treatment of Cosun and other producers of C sugar, was a new complaint, on which the Court of First Instance had been unable to comment. The fourth ground of appeal was therefore inadmissible.

71. 84. In reply to the claim that the fourth ground of appeal is a new argument, Cosun maintains that it has merely developed further the arguments put to the Court of First Instance. The fourth ground of appeal was therefore admissible.

2. Analysis

a) The first and second parts of the fourth ground of appeal

72. 85. As regards the Commission’s objection that the first part of the fourth ground of appeal is inadmissible, it should be pointed out that in its application in the proceedings before the Court of First Instance the appellant complained both that the C sugar at issue had the status of an imported product and that the charge on C sugar formed part of the Community’s own resources.

73. 86. Accordingly, not only are the complaints not exactly backed by profound arguments, but above all they were already lodged before the Court of First Instance and are therefore inadmissible.

74. 87. As for the second part of the fourth ground of appeal, that is to say the line of argument based on the judgment in De Haan, ( ) a comparison with the application reveals that the appellant essentially does no more than reproduce its arguments. It is not enough simply to assert that those arguments attack the judgment of the Court of First Instance. If, on the other hand, the arguments were to be described as exceeding what was stated in the application, they would have to be classified as new arguments and therefore as an inadmissible new pleading.

75. 88. The first and second parts of the fourth ground of appeal are therefore inadmissible.

b) The third part of the fourth ground of appeal

76. 89. In the third part of the fourth ground of appeal, the appellant claims that the Court of First Instance omitted to consider the difference in the treatment of producers of C sugar like Cosun and other producers of C sugar.

77. 90. This is a line of argument which was not followed in this form before the Court of First Instance. The present appeal proceedings essentially concern the question whether a new line of argument or new arguments are to be regarded as new pleadings.

78. 91. In this context, it is necessary to begin by considering the Rules of Procedure of the Court of Justice itself. From this, it is evident that not all the language versions of the provisions of the Rules of Procedure relevant to appeals include the term ‘arguments’. Thus, unlike the French and Dutch versions, the German version of Article 112 confines itself to ‘grounds of appeal’, without making a separate reference to the related ‘arguments’.

79. 92. In addition, the French version of Article 117 of the Rules of Procedure concerning new arguments and of Article 112 thereof uses the term ‘moyen’, whereas the German and Dutch versions use entirely different terms, namely ‘Gesichtspunkt’ and ‘grond’, respectively.

80. 93. It is at least evident from the Rules of Procedure of the Court of Justice that procedural law does not depend solely on the ‘ground of appeal’ as used in the formal sense in Article 112.

81. 94. In this context, the settled case-law of the Court of Justice should first be recalled. According to this, Article 116 of the Rules of Procedure of the Court of Justice forbids new submissions in an appeal, unless they are based on legal or factual grounds which have come to light only during the proceedings. Otherwise, a party could bring before the Court of Justice a wider case than that heard by the Court of First Instance. ( )

82. 95. In an appeal, the jurisdiction of the Court of Justice is thus confined to review of the findings of law on the pleas argued at first instance. ( )

83. 96. As in Dansk Rørindustri and Others v Commission, where the appellant did not plead an infringement of the principle of the protection of legitimate expectations through the application of the guidelines, Cosun did not lodge with the Court of First Instance a complaint corresponding to the third part of the fourth ground of appeal.

84. 97. The inadmissibility of the appellant’s line of argument could also be inferred from the judgment of the Court of Justice in Atlanta v European Community, ( ) according to which a submission which changes the very basis on which the Community could be held liable must be regarded as constituting a new plea in law. This is all the truer of the present case, in which Cosun refers to a different aspect of equal treatment in the appeal from that cited during the proceedings before the Court of First Instance.

85. 98. The Court of Justice has also described as new an argument in which a different interpretation is advanced with regard to the scope of the criterion for the examination of the subject of the appeal. ( )

86. 99. The restrictive attitude of the Court of Justice also becomes clear in the judgment in IPK-München and Commission, in which the Court dismissed a plea as new and therefore inadmissible because the Commission had advanced a certain argument only during the appeal proceedings. ( )

87. 100. What is decisive for the restrictive attitude adopted by the Court of Justice is whether the argument contains new elements ( ) or whether it was merely the development of an argument which had already been raised. ( ) The distinction between ‘plea’ and ‘argument’ at least does not go far enough in itself. ( )

88. 101. A similarly strict tendency can be inferred from the case-law of the Court of Justice when an argument is not put forward until the oral proceedings rather than in the written appeal. ( )

89. 102. Finally, here, too, it cannot be accepted that Cosun’s argument is merely the development of an argument already raised before the Court of First Instance within the meaning of the case-law of the Court of Justice.

90. 103. Consequently, it is a new argument, which, according to the case-law of the Court of Justice, cannot be taken into account in the appeal. It is therefore best compared to a separate complaint which is first raised during the appeal proceedings. ( )

91. 104. As the third part of the fourth ground of appeal is thus a plea which is inadmissible at the appeal stage, it must be regarded as inadmissible.

IX – Costs

92. 105. Pursuant to Article 122 of its Rules of Procedure, the Court of Justice makes a decision as to costs where the appeal is well founded and the Court itself gives final judgment in the case. Pursuant to Article 69(2) of the Rules of Procedure, which, pursuant to Article 118 thereof, is applicable in appeal proceedings, the unsuccessful party is to be ordered to pay the costs if they have been applied for. As the Commission has applied for the appellant to be ordered to pay the costs and the appellant has been unsuccessful in its arguments, it must bear the costs.

X – Conclusion

93. 106. In view of the foregoing, it is proposed that the Court of Justice should rule as follows:

1) 1. The appeal is dismissed.

2) 2. The appellant is ordered to pay the costs of the proceedings.