EN Official Journal of the European Union C 267/71

Action brought on 20 August 2009 — Poland v Commission

(Case T-333/09)

2009/C 267/130

Language of the case: Polish

Parties

Claimant: Republic of Poland (represented by: M. Dowgielewicz, Agent)

Defendant: Commission of the European Communities

Form of order sought

— declare invalid Annex I to Commission Decision 2009/444/EC of 10 June 2009 (notified under document number C(2009) 4375) allocating the amounts resulting from the modulation provided for in Articles 7 and 10 of Council Regulation (EC) No 73/2009 to the Member States for the years 2009 to 2012, (1) in so far as it determines, for 2012, the allocation to the Member States of the amounts resulting from the modulation provided for in accordance with Article 9(2) and (3) of Regulation (EC) No 73/2009;

— order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

In support of its claim that Commission Decision 2009/444/EC should be declared partially invalid, the claimant makes the following submissions.

First, the claimant alleges an infringement of the principle of the hierarchy of legal norms by reason of the adoption of measures which are contrary to Article 9(2) of Regulation No 73/2009. (2) The claimant submits in this regard that the contested decision divides the amounts provided for the whole of the period 2009-2012 exclusively among the States of the Community of Fifteen, whereas Article 9(2) of Regulation No 73/2009 provides that, from 2012, those States will not be the only Member States to be affected by that modulation. In connection with the foregoing, in the claimant’s view, the new Member States will also have to be subject to that mechanism with regard to 2012.

Second, the claimant alleges that there has been an infringement of, first, the principle that funds should be allocated from the modulation in accordance with objective criteria, which principle follows from recital 14 in the preamble to Regulation No 73/2009 and from Article 9(2) thereof and, second, the principle of solidarity.

Third, the claimant alleges that the principle of non-discrimination has been infringed, in so far as, in its view, the criteria applied by the Commission for the allocation of funds from the modulation for 2012 (such as the date of accession of a particular Member State to the European Union and the level of contributions of a given Member State to the allocation of funds from the modulation), which led to the exclusion of the Republic of Poland and other new Member States from allocations under those funds, are not objective and do not ensure a proportional distribution of burdens and benefits resulting from the modulation mechanism.

Fourth, the claimant submits that the contested decision breaches Article 253 EC in that the grounds for excluding the new Member States from the distribution for 2012 with regard to the funds allocated from the modulation, which have to be allocated in accordance with objective criteria among all of the Member States which apply the modulation mechanism, were not indicated by the Commission in the content of the contested decision, in particular in its preamble, or in the course of the preparatory work on the contested decision.

Fifth, the claimant alleges that the defendant failed to comply with an essential procedural requirement by reason of the fact that it adopted the contested decision in a manner at variance with the procedural rules governing the Management Committee for Direct Payment Matters and with Article 3 of Council Regulation No 1 determining the languages to be used by the European Economic Community. (3) The claimant contends that the Commission failed to provide the representative of the Republic of Poland with a draft version of the contested decision in Polish, despite being requested to do so, a failure which made it difficult for the claimant to assess that draft version and to carry out the necessary consultations.

(1) OJ 2009 L 148 of 11.06.2009, p. 29.

(2) Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003 (OJ 2009 L 30 of 31.01.2009, p. 16).

(3) OJ, English Special Edition 1952-1958, p. 59.