OPINION OF ADVOCATE GENERAL

WAHL

delivered on 4 May 2017 ( 1 )

Case C‑183/16 P

Tilly-Sabco

v

European Commission

(Appeal — Agriculture — Export refund — Regulation (EC) No 1234/2007 — Articles 162 and 164 — Comitology procedure — Regulation (EU) No 182/2011 — Article 3 — Poultrymeat — Frozen chickens — Regulation (EU) No 689/2013 — Commission practice in setting refunds — Refund set at EUR 0 — Applicable time limits — Duty to give reasons)

1. By its appeal, Tilly-Sabco requests the Court to set aside the judgment of the General Court in Case T-397/13. ( 2 ) In that judgment, the General Court dismissed Tilly-Sabco’s action seeking the annulment of Regulation (EU) No 689/2013, ( 3 ) which set the amount of refunds for exporting frozen chickens to certain countries at zero. This appeal raises a number of different legal issues.

2. In the judgment under appeal, the General Court held, inter alia, that the Commission’s current practice in setting export refunds complies with the comitology rules, in particular Article 3 of Regulation (EU) No 182/2011. ( 4 ) Essentially, that practice consists of submitting and adopting draft implementing acts within a very short time in order to minimise the risk of leaks and, the Commission claims, speculation. Furthermore, the General Court ruled that the Commission did not breach its duty to give reasons under Article 296 TFEU when, during the adoption of the contested regulation, it simply replaced the amount previously refunded by the number zero without changing the reasons provided in the regulation which preceded the contested regulation. The General Court also dismissed a number of other grounds of annulment submitted by the appellant.

3. For the reasons given below, I consider none of Tilly-Sabco’s grounds of appeal to be viable. Accordingly, I propose that the Court should dismiss this appeal.

I. Legal framework

A. Regulation (EC) No 1234/2007 ( 5 )

4. Article 162 of Regulation No 1234/2007 (‘Scope of export refunds’) provides: ‘1. To the extent necessary to enable exports on the basis of world market quotations or prices and within the limits resulting from agreements concluded in accordance with [Article 218 TFEU], the difference between those quotations or prices and prices in the [Union] may be covered by export refunds for: (a) the products of the following sectors to be exported without further processing: … (viii) poultrymeat.’

5. Under Article 164 of Regulation No 1234/2007 (‘Export refund fixation’): ‘1. Export refunds shall be the same for the whole [Union]. They may vary according to destination, especially where the world market situation, the specific requirements of certain markets, or obligations resulting from agreements concluded in accordance with [Article 218 TFEU] make this necessary. 2. Refunds shall be fixed by the Commission. Refunds may be fixed: (a) at regular intervals; (b) by invitation to tender for products in respect of which provision was made for that procedure before the date of application of this Regulation in accordance with Article 204(2). Except where fixed by tender, the list of products on which an export refund is granted and the amount of export refunds shall be fixed at least once every three months. The amount of the refund may, however, remain at the same level for more than three months and may, where necessary, be adjusted in the intervening period by the Commission, without the assistance of the Committee referred to in Article 195(1), either at the request of a Member State or on its own initiative. 3. One or more of the following aspects shall be taken into account when refunds for a certain product are being fixed: (a) the existing situation and the future trend with regard to: — prices and availabilities of that product on the [EU] market, — prices for that product on the world market. (b) the aims of the common market organisation which are to ensure equilibrium and the natural development of prices and trade on this market; (c) the need to avoid disturbances likely to cause a prolonged imbalance between supply and demand on the [EU] market; (d) the economic aspect of the proposed exports; (e) the limits resulting from agreements concluded in accordance with [Article 218 TFEU]; (f) the need to establish a balance between the use of [EU] basic products in the manufacture of processed goods for export to third countries, and the use of third-country products brought in under processing arrangements; (g) the most favourable marketing costs and transport costs from [EU] markets to [EU] ports or other places of export together with forwarding costs to the countries of destination; (h) demand on the [EU] market; (i) in respect of the pigmeat, eggs and poultrymeat sectors, the difference between prices within the [EU] and prices on the world market for the quantity of feed grain input required for the production in the [EU] of the products of those sectors. …’

6. Article 195(1) and (2) of Regulation No 1234/2007 (‘Committee’) provides: ‘1. The Commission shall be assisted by the Management Committee for the Common Organisation of Agricultural Markets (hereinafter referred to as the Committee). 2. Where reference is made to this paragraph, Articles 4 and 7 of Decision 1999/468/EC [ ( 6 )] shall apply. The period laid down in Article 4(3) of Decision 1999/468/EC shall be set at one month.’

B. Regulation (EU) No 182/2011

7. Regulation No 182/2011 repealed and replaced Decision 1999/468. Article 3 thereof (‘Common provisions’) provides: ‘1. The common provisions set out in this Article shall apply to all the procedures referred to in Articles 4 to 8. 2. The Commission shall be assisted by a committee composed of representatives of the Member States. The committee shall be chaired by a representative of the Commission. The chair shall not take part in the committee vote. 3. The chair shall submit to the committee the draft implementing act to be adopted by the Commission. Except in duly justified cases, the chair shall convene a meeting not less than 14 days from submission of the draft implementing act and of the draft agenda to the committee. The committee shall deliver its opinion on the draft implementing act within a time limit which the chair may lay down according to the urgency of the matter. Time limits shall be proportionate and shall afford committee members early and effective opportunities to examine the draft implementing act and express their views. …’

8. Article 5 of Regulation No 182/2011 (‘Examination procedure’) provides: ‘ … 2. Where the committee delivers a positive opinion, the Commission shall adopt the draft implementing act. 3. Without prejudice to Article 7, if the committee delivers a negative opinion, the Commission shall not adopt the draft implementing act. Where an implementing act is deemed to be necessary, the chair may either submit an amended version of the draft implementing act to the same committee within 2 months of delivery of the negative opinion, or submit the draft implementing act within 1 month of such delivery to the appeal committee for further deliberation. 4. Where no opinion is delivered, the Commission may adopt the draft implementing act, except in the cases provided for in the second subparagraph. Where the Commission does not adopt the draft implementing act, the chair may submit to the committee an amended version thereof. Without prejudice to Article 7, the Commission shall not adopt the draft implementing act where: … (c) a simple majority of the component members of the committee opposes it. …’

9. Under Article 7 of Regulation No 182/2011 (‘Adoption of implementing acts in exceptional cases’): ‘By way of derogation from Article 5(3) and the second subparagraph of Article 5(4), the Commission may adopt a draft implementing act where it needs to be adopted without delay in order to avoid creating a significant disruption of the markets in the area of agriculture or a risk for the financial interests of the Union within the meaning of Article 325 TFEU.’

II. Background to the proceedings

10. Tilly-Sabco is a French company active in the export of whole frozen chickens to the countries of the Middle East.

11. In accordance with the principles governing export refunds laid down in Regulation No 1234/2007 and, specifically, Articles 162 and 164 thereof, the Commission regularly fixed, by implementing regulations, the amount of the export refunds in the poultrymeat sector.

12. Since the adoption of Regulation (EU) No 525/2010, ( 7 ) the amount of those refunds has gradually fallen for three categories of deep-frozen chickens. The amount of the export refunds was first of all reduced from EUR 40 per 100 kg to EUR 32.50 per 100 kg. After being maintained by eight successive implementing regulations, the latter amount then fell to EUR 21.70 per 100 kg pursuant to Regulation (EU) No 962/2012. ( 8 )

13. A new reduction, bringing the amount of the refunds to EUR 10.85 per 100 kg for the three categories of deep-frozen chickens in question, was imposed by Regulation (EU) No 33/2013. ( 9 ) That amount was then maintained by Regulation (EU) No 360/2013. ( 10 )

14. By the contested regulation, the Commission, in particular, set at zero the amount of export refunds for three categories of deep-frozen chickens.

15. The amount of the refunds for the other six products — essentially chicks — listed in the annex to the contested regulation, which had been set at zero by Regulation (EU) No 1056/2011, ( 11 ) was not amended.

16. According to the annex to the contested regulation, the destinations affected by the export refunds are, in particular, countries in the Middle East.

17. The relevant recitals of the contested regulation read: ‘(1) Article 162(1) of Regulation (EC) No 1234/2007 provides that the difference between prices on the world market for the products referred to in Part XX of Annex I to that Regulation and prices in the Union for those products may be covered by an export refund. (2) In view of the current situation on the market in poultrymeat, export refunds should be fixed in accordance with the rules and criteria provided for in Articles 162, 163, 164, 167 and 169 of Regulation (EC) No 1234/2007. (3) Article 164(1) of Regulation (EC) No 1234/2007 provides that refunds may vary according to destination, especially where the world market situation, the specific requirements of certain markets, or obligations resulting from agreements concluded in accordance with Article [218 TFEU] make this necessary. … (6) In order to prevent divergence with the current market situation, to prevent market speculation and to ensure efficient management this Regulation should enter into force on the day of its publication in the Official Journal of the European Union. (7) The Management Committee for the Common Organisation of Agricultural Markets has not delivered an opinion within the time limit set by its Chair.’

18. According to paragraphs 76 to 82 of the judgment under appeal, the contested regulation was adopted under the following circumstances.

19. On 16 July 2013, the Commission sent an email to the members of the committee referred to in Article 195(1) of Regulation No 1234/2007 (‘the Management Committee’), containing a document bearing the title ‘EU Market situation for poultry’.

20. During the meeting of the Management Committee which took place on the morning of 18 July 2013, the Commission presented the market situation for poultry. On the afternoon of the same day where that meeting resumed after 13.00, the Commission submitted the draft version of the contested regulation (‘the draft regulation’). The draft regulation was a photocopy of the previous regulation setting export refunds in which the entries concerning the amount of the refunds had been struck out with a pencil.

21. The draft regulation was subsequently put to a vote. The Director-General of the Commission’s Directorate-General for Agriculture and Rural Development completed the formalities for self-certification on the same day, at 15.46, so as to enable the contested regulation to be published in the Official Journal of the European Union on the next day, with an immediate entry into force and application.

22. None of the representatives of the Member States assembled in the Management Committee objected to the method or the time limits used by the Commission.

III. Procedure before the General Court

23. By application lodged with the General Court on 6 August 2013, Tilly-Sabco brought an action seeking the annulment of the contested regulation. In support thereof, Tilly-Sabco put forward five grounds of annulment, consisting of (i) breach of an essential procedural requirement and misuse of process; (ii) procedural error and lack of competence; (iii) lack of reasoning; (iv) infringement of the law or manifest error of assessment; and (v) breach of the principle of legitimate expectations.

24. On the same day, Tilly-Sabco requested the General Court to stay the application of the contested regulation pending the outcome of the action for annulment. By order of 29 August 2013, the French Republic was given leave to intervene in support of that application. By order of 26 September 2013, the President of the General Court dismissed that application. ( 12 )

25. By order of 7 April 2014, Doux SA was given leave to intervene in support of the forms of order sought by Tilly-Sabco in its action for annulment.

26. Following a public hearing held on 22 April 2015, the General Court dismissed Tilly-Sabco’s action for annulment and ordered it to pay its own costs, including those relating to the interim proceedings. The General Court also ordered the Commission, the French Republic and Doux to bear their own costs.

IV. Procedure before the Court and forms of order sought

27. By its appeal lodged with the Court on 31 March 2016, Tilly-Sabco claims that the Court should: – set aside the judgment under appeal, except as regards the admissibility of the action; – decide, in accordance with Article 61 of the Statute of the Court of Justice of the European Union, to give final judgment in the matter itself and annul the contested regulation; – order the Commission to pay the costs both at first instance and on appeal.

28. In its response, lodged with the Court on 17 June 2016, the Commission claims that the Court should: – dismiss the appeal; – order the appellant to bear the costs.

29. Both parties presented oral argument at the hearing held on 1 March 2017.

V. Analysis

A. Introductory remarks

30. In support of its appeal, Tilly-Sabco puts forward four grounds, mostly divided into several parts. Essentially, the appellant argues that the General Court misinterpreted: (i) Article 3(3) of Regulation No 182/2011; (ii) Article 164(2) of Regulation No 1234/2007; (iii) Article 296 TFEU and (iv) Article 164(3) of Regulation No 1234/2007 or committed a manifest error of assessment when considering that provision. I shall deal with each of those grounds of appeal in turn after summarising the views of the parties.

31. The first ground of appeal appears to be the most delicate one. It concerns the lawfulness of the Commission’s practice in its dealings with the Management Committee when setting the rate of export refunds. The Commission told the General Court (see paragraph 79 of the judgment under appeal) that this practice dates back to 1962.

32. Intertwined with that issue is the fact that the subject matter of this case is a regulation which was modelled on a nearly identically worded regulation which it repealed and replaced and in relation to which it only changed certain figures. Such ‘template regulations’ raise in turn questions both as regards the duty to give reasons and the possibility, for the Commission, by setting the refunded amount at zero, of de facto discontinuing the adoption, pursuant to Regulation No 1234/2007, of so-called periodic agricultural legal instruments.

33. Mention ought also to be made of the fact that, by two judgments issued on the same day as the judgment under appeal, the General Court dismissed the actions for annulment brought by Doux ( 13 ) and the French Republic ( 14 ) against the contested regulation. Those judgments are final, as they were not the subject of appeals to the Court.

34. Lastly, in paragraphs 28 to 68 of the judgment under appeal, the General Court considered that all the requirements under the fourth paragraph of Article 263 TFEU were met, in particular that the contested regulation does not entail implementing measures. ( 15 ) The Commission, which challenged the appellant’s standing before the General Court, ( 16 ) has not challenged that part of the judgment under appeal. In those circumstances, it is unnecessary for the Court to consider of its own motion whether the contested judgment is right on that point. ( 17 )

B. First ground of appeal: incorrect interpretation of Article 3(3) of Regulation No 182/2011 by the General Court

1. Arguments of the parties

35. In the first part of the first ground of appeal, the appellant claims that the General Court misinterpreted, in paragraphs 70 to 146 of the judgment under appeal, the concept of ‘proportionate time limit’ in Article 3(3) of Regulation No 182/2011. Handing over the draft regulation at a meeting which commenced after 13.00 and ended at 15.46, does not, in its view, constitute observance of a proportionate time limit. It argues, moreover, in its reply that the possibility for private individuals of relying on a breach of Regulation No 182/2011 has never been contested, and that not to recognise this would breach Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’).

36. In the second part of that ground of appeal, Tilly-Sabco submits that the General Court erroneously interpreted and/or contradicted itself, in paragraphs 86, 110 to 115 and 128 of the judgment under appeal, when dealing with the criterion of urgency. The General Court could not, it argues, all at once confirm the lack of urgency, on the one hand, and emphasise the risk of leaks which might warrant the submission of the draft regulation during the meeting, on the other — a risk which it in any event considers not to amount to urgency. In its reply, Tilly-Sabco refers to the Standard rules of procedure ( 18 ) in relation to Decision 1999/468, which state that there is extreme urgency ‘in particular if there is a threat to human or animal health’.

37. By the third part of this ground of appeal, the appellant alleges that the General Court mistook, in paragraphs 92 to 108 of the judgment under appeal, the time limit for the sending of documents relating to the market situation for the one applicable to the transmission of the draft regulation. The few minutes left, after the receipt by the members of the Management Committee of the draft regulation, amounted to an extremely short or even no time limit, which prevented that committee from considering all the necessary circumstances.

38. In the fourth part of this ground of appeal, the appellant alleges that by validating, in paragraphs 111 to 118 of the judgment under appeal, the Commission practice dating back to 1962, the General Court breached Article 3(3) of Regulation No 182/2011. In its view, nothing prevented the Commission from redrafting that regulation to accommodate that practice.

39. Lastly, in the fifth part of that ground of appeal, Tilly-Sabco argues that the General Court contradicted itself by stating, on the one hand, in paragraph 149 of the judgment under appeal, that the Commission had indicated that setting the refunds at zero was based on the market situation of the moment, while the General Court later stated, in paragraph 255 thereof, that the Commission indicated that a progressive lowering of the applicable rates was the result of an ongoing, and therefore not an existing, situation.

40. The Commission contests those arguments.

2. Assessment

41. I shall deal with this ground of appeal jointly, as essentially all of its parts (bar the fifth) concern the alleged misinterpretation, in various ways, by the General Court of Article 3(3) of Regulation No 182/2011.

42. In the judgment under appeal, the General Court considered, in paragraph 91, that Article 3(3) of Regulation No 182/2011 does not exclude, in principle, the submission of a draft implementing act during a committee meeting. After analysing the circumstances of the procedure leading to the adoption of the contested regulation, it then held, in paragraph 108 of that judgment, that the amount of time between the submission of the draft regulation and the vote thereon was sufficient to give the members of the Management Committee real opportunities to examine the draft regulation and express their views. Next, it considered, in paragraph 114 thereof, that the question of the urgency of the matter, as referred to in the second sentence of Article 3(3) of that regulation, falls to be decided by the Commission, and that the standard of judicial review is limited to the existence of a manifest error of assessment or misuse of powers. It concluded, in paragraphs 119 and 120 of that judgment, that the time limit for the opinion of the Management Committee was proportionate and that the assessment of the Commission as to the urgency was vitiated neither by a manifest error of assessment nor a misuse of powers, and that the Commission therefore did not breach that provision. The General Court then went on to hold, in paragraphs 123 and 124 of the judgment under appeal, in the event that the appellant had intended to submit a ground for annulment based on a breach of the Management Committee’s internal rules of procedure, ( 19 ) that it is not open to private individuals to argue a breach of such rules. Lastly, it considered for the sake of completeness, in paragraphs 125 to 129 thereof, that even if the Commission had breached Article 3(3) of that regulation, the time limit set had proven to be sufficient, and therefore that a possible breach would not lead to the annulment of the contested regulation.

43. As a point of order, although Tilly-Sabco does submit in its appeal that no urgency was invoked in the matter at hand to justify a speedy treatment, its specific argument relating to the concept of ‘urgency’, as used in the Standard rules of procedure (see point 36 above), was not raised in its appeal and is therefore out of time, as nothing in the Commission’s response justified submitting that argument in the appellant’s reply. ( 20 ) Assuming however, that that specific argument was admissible, it would have to fail, as private individuals may not rely on such rules of procedure, as explained later.

44. I now turn to Article 3(3) of Regulation No 182/2011. It contains three separate rules.

45. First, it provides that the Commission must convene a meeting no less than 14 days from the submission of the draft implementing act and of the draft agenda to the Management Committee, ‘except in duly justified cases’ (‘the first rule’).

46. Next, it requires the Management Committee to deliver its opinion on the draft implementing act within a time limit which the Commission may lay down ‘according to the urgency of the matter’ (‘the second rule’).

47. Last, it states that time limits shall be ‘proportionate’ and shall afford Management Committee members ‘early and effective opportunities’ to examine the draft implementing act and express their views (‘the third rule’).

48. The wording of Article 3(3) of Regulation No 182/2011 makes it immediately apparent that no absolute time limit exists. Even where a fixed time limit is mentioned — as is the case for the first rule — it is open to adjustment. I therefore concur with the General Court that Article 3(3) of Regulation No 182/2011 does not exclude, in principle, the submission of a draft implementing act during a committee meeting.

49. To be sure, the first two rules, which lay down specific duties to act respectively on the Commission and the Management Committee and the applicable time limits therefor, do appear to hedge in the possibility of setting short time limits. The same can be said for the third rule, which assumes the role of a general clause.

50. However, all three rules are imperfect: nowhere does Regulation No 182/2011 explain what is meant by ‘duly justified cases’, ‘urgency’, ‘proportionate’ or ‘early and effective opportunities’. Those rules seem therefore more akin to a policy statement than a hard rule. Specifically, whether it is ‘duly justified’ to shorten the time for submitting the draft implementing act and draft agenda to the Management Committee under the first rule, and whether the time limit set for the committee to give its opinion is ‘proportionate’ under the third rule, seems to me to be entirely a matter of circumstances.

51. So far as concerns the second rule, that provision does not actually even refer to cases of urgency, but rather uses the expression ‘according to the urgency of the matter’, which is a different kettle of fish. Those terms would not even exclude the possibility of setting a lengthy time limit in urgent cases and a short one in trivial ones. In any event, the second rule does not reserve speedy treatment to urgent cases. That is confirmed by other provisions of Regulation No 182/2011.

52. Indeed, from a contextual point of view, the possibility of acting swiftly in case of urgency — or rather of extreme urgency — is mentioned in a different provision, namely Article 8(5) of Regulation No 182/2011. ( 21 ) Tellingly, the time limits specified in that provision do not mention the possibility of an extension.

53. Similarly, Article 7 of Regulation No 182/2011, which derogates from Article 5(3) and (4) thereof, lays down a particular procedure whereby the Commission may adopt a draft implementing act in case it ‘needs to be adopted without delay’ in order to avoid creating a significant disruption of the markets in the area of agriculture or a risk for the financial interests of the Union. The usefulness of that provision would be diminished or even annihilated if, under the second rule, only matters of urgency would permit the Commission to request the Management Committee to deliver its opinion on a draft implementing act within a very short time period.

54. Moreover, the aspirational terms in which Article 196 of Regulation No 1234/2007 (‘Organisation of the Management Committee’) has been drafted, which provides that ‘the organisation of the meetings of the [Management Committee] shall take into account, in particular, the scope of its responsibilities, the specificities of the subject to be dealt with, and the need to involve appropriate expertise’, lend support to the idea that the time limits set in Article 3(3) of Regulation No 182/2011 are supple, and that the Commission has discretion in setting them.

55. In addition, from a teleological point of view, Regulation No 182/2011 aims to ensure that the procedures for control by Member States of the Commission’s exercise of implementing power are clear, effective and proportionate to the nature of the implementing acts and that they reflect the institutional requirements of the FEU Treaty as well as the experience gained and the common practice followed in the implementation of Decision 1999/468. Specifically, the examination procedure aims to ensure that implementing acts cannot be adopted by the Commission if they are not in accordance with the opinion of the Management Committee. ( 22 ) Conversely, the aim of that procedure is not to ensure that implementing acts cannot be adopted by the Commission if private operators object to them.

56. At this juncture, I would venture drawing a parallel. Indeed, the Court has allowed Member States to argue a breach of internal rules of procedure ( 23 ) and has also held that institutions may not depart from those rules of procedure without amending them. ( 24 ) However, it has also repeatedly held that the purpose of the rules of procedure of an institution is to organise the internal functioning of its services in the interests of good administration. Consequently, private individuals may not rely on an alleged breach of those rules, since they are not intended to ensure protection for them. ( 25 ) Only where a rule contained in such rules of procedure amounts to an essential procedural requirement intended to guarantee legal certainty — such as the authentication of acts — may a breach thereof give rise to an action for annulment. ( 26 ) That is not the case for this appeal.

57. As mentioned above at point 50, the concepts used in all three rules featuring in Article 3(3) of Regulation No 182/2011 are imprecise. That is why those concepts need to be properly fleshed out in specific rules of procedure. ( 27 ) That has been done in the rules of procedure of the Management Committee. Accordingly, it would seem to me that a risk exists that the line of case-law mentioned in the previous point would be circumvented if the notion were to be entertained that private individuals might be able to extract hard rules from higher-ranking provisions such as Article 3(3) of Regulation No 182/2011 which appear, presumably deliberately, to have been drafted in vague and malleable terms by the EU legislature.

58. That does not call into question the fact that the rules set out in Regulation No 182/2011 are both binding and directly applicable under Article 288 TFEU, and that private individuals such as the appellant may therefore in principle rely on those rules before the Union Courts in order to challenge the validity of instruments adopted in breach of its provisions. They may, for instance, challenge the fact that no meeting was held at all. However, it does not alter the fact either that, in the absence of specific rules to the contrary, the comitology rules do not usually confer rights on private individuals. ( 28 ) Here, the time limits set in Article 3(3) of that regulation are too imprecise to confer an actionable right on private individuals. ( 29 ) Recognising that does not amount to a breach of the appellant’s rights under Article 47 of the Charter.

59. As for the review conducted by the General Court, I do agree with that court that the Court has ruled, in Germany v Commission, that the question of the urgency of the treatment of a given case in a comitology procedure falls to be decided by the Commission, and that the standard of judicial review is limited to the existence of an obvious error or misuse of powers. ( 30 ) However, that ruling hinged on the interpretation of the rules of procedure of the particular committee involved in that case, where a Member State — not a private individual — challenged the Commission’s view of the urgency of the matter. That judgment is therefore not directly relevant to this appeal, although it might have been relevant in the action for annulment brought by the French Republic. However, tellingly, that Member State did not challenge the contested regulation on the grounds either of a breach of Article 3(3) of Regulation No 182/2011, or of a breach of the rules of procedure of the Management Committee. ( 31 )

60. Hence, I consider that the General Court was right to hold that the Commission did not breach Article 3(3) of Regulation No 182/2011. None of the arguments raised by the appellant calls that into question.

61. Indeed, the arguments raised in the first three parts of the first ground of appeal cannot support the form of order sought, as exporters do not have an actionable right under Article 3(3) of Regulation No 182/2011, in the circumstances of the present case, to challenge the way in which the Commission interacts with the Management Committee.

62. Moreover, the appellant is wrong to argue, in the third part of that ground of appeal, that the General Court had enough evidence to rule that the Management Committee did not have all the necessary elements at its disposal to reach its decision. Article 3(3) of Regulation No 182/2011 requires the Commission to submit only the draft implementing act and the draft agenda to that committee, and no other documents. Therefore, strictly speaking, the Commission was not obliged to disclose to the Management Committee its theoretical calculation of the amount of export refunds based on the difference between the prices on the EU market and the prices on the world market (‘the theoretical calculation’). ( 32 ) As will also be apparent from points 107 and 108 below, the appellant’s assertion that the aim of export refunds is to compensate the imbalance between the EU and world markets by allowing traders to export, which presupposes that the Commission and the committee take into account the situation of exporters, is incorrect.

63. The fourth part of the first ground of appeal is equally defective as it works both ways: as the Commission stated at the hearing, it considered its practice to be lawful and did not see a need for a change to the comitology rules, regardless of the duration of that practice.

64. The fifth part of the first ground of appeal does not concern whether the Management Committee had sufficient time to reflect on the draft regulation, but rather an alleged contradiction between the procedure chosen and the recitals of the contested regulation. That issue rather concerns the third ground of appeal, which I shall address below at point 78 et seq. Be that as it may, in paragraph 149 of the judgment under appeal the General Court did not state its own view but rather that of the Commission. Hence, the General Court cannot have contradicted itself by adopting the position of the Commission. In any event, a market situation can both be current (existing) and ongoing at the same time, and I therefore see no contradiction in terms.

65. In sum, as the appellant has succeeded in none of the five parts of the first ground of appeal, that ground must be dismissed in its entirety.

66. Moreover, in view of that conclusion, I do not find it necessary to consider whether granting the Management Committee more time to consider the draft regulation might have resulted in a different outcome as far as concerns the amounts of export refund set. ( 33 )

C. Second ground of appeal: incorrect interpretation of Article 164(2) of Regulation No 1234/2007 and contradiction in the reasoning given by the General Court

1. Arguments of the parties

67. Tilly-Sabco argues that having rejected, at paragraph 200 of the judgment under appeal, its view that the contested regulation was not a ‘periodic agricultural instrument’, the General Court did not analyse that concept, even though the sub-delegation in question issued to the Director-General concerned such instruments. As the contested regulation was not replaced by a new regulation, it could not be a ‘periodic agricultural instrument’ covered by the sub-delegation —irrespective of the reason therefor — and hence the General Court erred, in the appellant’s view, in considering that it was. In its reply, it argues that the non-renewal was the result of a predetermined orientation, and that the General Court did not censure the Commission for failing to take into account ‘the future trend’ as referred to in Article 164(3)(a) of Regulation No 1234/2007, whether it be during the committee meeting of 18 July 2013 or by not convening a meeting in October 2013 to re-evaluate the level of export refunds.

68. The Commission contests those arguments.

2. Assessment

69. This ground of appeal must be dismissed.

70. From the outset, I agree with the Commission that the precise scope of this ground of appeal is unclear. Generally speaking, the appellant’s arguments are at times, as a whole, directed less at the judgment under appeal than at the contested regulation.

71. Be that as it may, to the extent that this ground of appeal is based on a breach of Article 164(2) of Regulation No 1234/2007 in so far as Tilly-Sabco argues that the General Court failed to consider whether the contested regulation was a ‘periodic agricultural instrument’ which was covered by the relevant sub-delegation and the consequences of that classification, suffice it to say that Article 164(2) thereof does not mention that concept. The fact that Article 164(3)(a) of Regulation No 1234/2007 refers to ‘the future trend’ does not alter this. Therefore, whether the General Court failed to analyse that concept is immaterial.

72. Moreover, in rejecting the appellant’s argument, in paragraph 200 of the judgment under appeal, that the contested regulation was not a ‘periodic agricultural instrument’, the General Court did not classify a contrario that measure as such nor recognise the legal value of that concept. The General Court simply rejected the argument that the contested regulation was not a ‘periodic agricultural instrument’ because it had not been renewed.

73. In any event, the appellant misconstrues Article 164(2) of Regulation No 1234/2007. While the first sentence of that provision states that ‘refunds shall be fixed by the Commission’, the second sentence states that ‘refunds may be fixed’ either ‘at regular intervals’ or ‘by invitation to tender’. If the former, the third sentence states that the amount of refund ‘shall be fixed at least once every three months’ but ‘may, however, remain at the same level for more than three months’. Therefore, the Commission was entitled to maintain the amount set beyond three months. In that regard, Article 164(2) of Regulation No 1234/2007 does not prescribe the manner in which such maintenance is to take place. Hence, while a date of expiry could have been set in the contested regulation, that was not required under that provision given that, without such a date, the contested regulation would simply continue to apply, thus maintaining the amount set. ( 34 )

74. As for the argument that the non-renewal was the result of a predetermined orientation, the appellant specified at the hearing that it essentially based its view on two elements. First, it claims that during its meeting of October 2013 the Management Committee did not discuss whether to maintain or renew the contested regulation. Second, it argues that the minutes of the committee meeting of 18 July 2013 show that the setting of export refunds was terminated.

75. From the outset, the Commission’s dealings with the Management Committee after the adoption of the contested regulation cannot call into question the validity of that regulation, which must be considered on the basis of facts and the law as they stood at the time when that regulation was adopted. ( 35 ) Next, the elements relied on by the appellant require consideration of the facts of the case, which is not the task of the Court in an appeal procedure. Last and in any event, the appellant is wrong on both counts: the Commission argued at the hearing, without being gainsaid, that the agenda of the committee meeting of October 2013 contained a point stating that the Management Committee might be requested to give an opinion regarding a draft regulation setting export refunds for the poultrymeat sector. That is confirmed by the minutes of that meeting held on 17 October 2013. ( 36 ) Moreover, irrespective of what interpretative value minutes of a committee meeting might have for the validity of the decisions taken during that meeting, the minutes of the committee meeting held on 18 July 2013 do not refer to a ‘termination’ or a ‘suspension’ as argued by the appellant. Instead they merely state that ‘the Commission proposed to put the remaining refunds to zero’. It is the unofficial French translation of those minutes, which the appellant submitted as annex to its application at first instance, which erroneously states that ‘la Commission a proposé de supprimer les restitutions’ (‘the Commission proposed to put an end to the refunds’).

76. Lastly, the appellant has not argued in its appeal that the General Court failed to hold that a de facto suspension of the setting of export refunds could only be adopted under Article 162 of Regulation No 1234/2007, and that the sub-delegation at issue could not extend to the contested regulation. ( 37 ) Moreover, counsel for the appellant acknowledged at the hearing that its line of argument that the contested regulation was not a ‘periodic agricultural instrument’ was distinct from and alternative to the question of whether the Commission could adopt the contested regulation under Article 164(2) and (3) thereof. Accordingly, it is doubtful whether the argument based on a breach of Article 162 of Regulation No 1234/2007 has been raised in time by the appellant, bearing in mind that it is not for the Court to consider the legal basis of the contested regulation of its own motion. ( 38 )

77. Should the Court nonetheless regard that submission as inherent in the second ground of appeal, it ought, in my view, to be dismissed. Indeed, Article 162(1) of Regulation No 1234/2007 does not bestow on any EU organ the power to institute, regulate or terminate an export refund scheme. In any event, the decision to set the amount of export refunds at zero does not, in itself, amount to a termination. Setting it at zero is merely a particular modulation or adaptation of the amount refunded in a given situation. The fact that the Commission chose to set the amount at zero over a given period does not call into question the fact that it has the power to (re)set the amount of export refunds, let alone suggest that the Commission unlawfully abolished the export refund system. Case-law shows that the Court has previously held that the Commission cannot be criticised because, rather than announcing the suspension of a premium for denaturing sugar for animal foodstuffs, it chose to fix it at nil, ‘in accordance with a method current in fiscal law and adopted by [EU] law’. ( 39 )

D. Third ground of appeal: error of assessment by the General Court of the absence of justification for or lack of reasoning behind the contested regulation

1. Arguments of the parties

78. In the first part of the third ground of appeal, the appellant alleges that the General Court breached Article 296 TFEU in paragraph 245 and misinterpreted the relevant case-law in paragraphs 226 to 231 of the judgment under appeal. In its view, the reasons given to justify a regulation setting export refunds cannot be the same when the amounts change, and particularly so when the amount is set at nil.

79. In the second part of that ground of appeal, Tilly-Sabco claims that it emerges from paragraphs 241, 291, 293, 300 and 398 to 401 of the judgment under appeal that the General Court breached the law by applying the Commission’s method of calculation in a manner such as to remove it from judicial review, including manifest errors of assessment. Moreover, the appellant argues that the General Court misconstrued, in paragraphs 320 and 321 of that judgment, certain documents submitted to the Management Committee, leading the appellant to consider that judgment to be contradictory, to restrict the right to judicial review, and to distort the facts.

80. The appellant submits, in the third part of that ground of appeal, that the General Court contradicted itself in paragraphs 253 to 255 of the judgment under appeal by stating that the amendment brought about by the contested regulation was not structurally different from the previous modifications, yet at the same time that it formed part of the progressive lowering of the amount of export refunds. Moreover, Tilly-Sabco alleges that the General Court erred in stating, at paragraph 259 of that judgment, that the Commission did not claim to have set the amount of refunds at zero owing to an international obligation.

81. By the fourth part of the third ground of appeal, Tilly-Sabco argues that the judgment under appeal contains a contradiction between, on the one hand, its paragraphs 53 and 54, which recognise that exporters will not apply for export refunds if the applicable rate has been set at EUR 0 and, on the other hand, its paragraphs 267 and 268, which do not rule out the possibility for national authorities of granting export refunds for an amount of EUR 0, even though no applications will in all likelihood be submitted.

82. The Commission contests those arguments.

2. Assessment

83. The scope of the various parts of the third ground of appeal is opaque. On my reading, Tilly-Sabco essentially alleges that the General Court failed to penalise the Commission for breaching its duty to give reasons (first and third part thereof); contradicted itself and/or erred in various places of the judgment under appeal (second, third and fourth part thereof); and improperly lowered the standard of judicial review (second part thereof). I shall consider these three issues in turn.

(a) The duty to give reasons

84. It is well established that the statement of reasons required by Article 296 TFEU must be appropriate to the act at issue and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in question in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent Union Court to exercise its power of review. The requirements to be satisfied by the statement of reasons depend on the circumstances of each case, in particular the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of direct and individual concern, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question. ( 40 )

85. In the case of measures of general application, the statement of reasons may be confined 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. ( 41 ) In particular, the statement of the reasons on which regulations are based is not required to specify the often very numerous and complex matters of fact or of law dealt with in a regulation, provided that it falls within the general scheme of the body of measures of which it forms part. Consequently, if the regulation clearly discloses the essential objective pursued by the institution, it would be excessive to require a specific statement of reasons for each of the technical choices made by the institution. ( 42 )

86. The Court has specifically had to deal with the duty to give reasons in relation to a line of consistent decisions or other measures (that is to say, an administrative practice). It has recognised that the degree of precision of the statement of reasons for a given measure must be weighed against the practical realities and the time and technical facilities available for taking that measure. ( 43 ) The Court has therefore accepted that, although the reasons for a measure forming part of an administrative practice may be given in a summary manner, for example by a reference to previous decisions or other measures, the EU authority must give an explicit account of its reasoning where a given measure goes appreciably further than the previous measures. ( 44 )

87. The grievance submitted by the appellant concerns precisely that. Tilly-Sabco argues that in setting the amount of export refunds at nil, the Commission could not simply ‘recycle’ the reasons given in a previous regulation, as the contested regulation went appreciably further than the previous ones, which the General Court failed to appreciate. It argues that the General Court misapplied the line of case-law mentioned in the previous point.

88. And yet the General Court did no such thing.

89. In paragraphs 223 to 231 of the judgment under appeal, the General Court correctly recalled the case-law referred to in point 86 above. After having first requested the Commission to detail its practice at the material time (paragraphs 235 to 241 thereof), in accordance with which the Commission set the amount of refund on the basis of two independent methods, namely (i) the theoretical calculation and (ii) an analysis of the situation of the market (‘the market analysis’), the General Court then went on to reject the appellant’s arguments that the Commission had departed from that practice (paragraphs 242 to 262 thereof).

90. And the General Court was right to do so.

91. Indeed, at first instance, the appellant did not claim that the Commission had not followed its usual practice from a procedural point of view (see paragraph 242 of the judgment under appeal). ( 45 ) It was the substantive modification brought about by the contested regulation which the appellant considered to depart from the Commission’s practice at the material time.

92. However, the General Court was clearly right to dismiss that view, as the reasons which led the Court, in Silos, to invalidate the regulation at issue in that case are manifestly not present in this one. In that judgment, the Court identified three separate grounds which, taken together, led it to conclude that the Commission had departed from its usual practice and, hence, that the reasons given were insufficient: ( 46 )

93. First, the regulation which preceded the one challenged in that case had increased the amount of refunds for the feedstuffs at issue, whereas the regulation at issue in that case had lowered it.

94. Second, the amount of refunds was reduced — in one fell swoop — from ECU 74.93 per tonne to nil.

95. Third, the regulation at issue in that case was adopted only one week after the one previously applicable.

96. By contrast, as noted in paragraphs 8 to 11 of the judgment under appeal, the amount of refund for the frozen poultrymeat products concerned was gradually reduced — without being temporarily increased — over a three-year period, from an initial amount of EUR 40 per 100 kg on 17 June 2010 to EUR 32.50 per 100 kg, then EUR 21.70 per 100 kg, then EUR 10.85 per 100 kg, before being fixed at zero on 18 July 2013 by the contested regulation. The contested regulation was adopted three months after the one previously applicable; a length of time explicitly envisaged by Article 164(2) of Regulation No 1234/2007. Those facts are undisputed.

97. It therefore is clear that the contested regulation formed part, within the framework of Regulations No 1234/2007 and No 182/2011, of a uniform procedure which had been consistently repeated, in which the regulations issued were adopted on the basis of explicit criteria mentioned in Regulation No 1234/2007 and with which the trade circles were perfectly familiar. Moreover, the content of the contested regulation does not differ to an appreciable extent from its predecessors. That is akin to the situation in Delacre. ( 47 )

98. The fact that the contested regulation set the amount of refund at nil without providing for reasons different from the previous regulation does not alter this. In addition to what I have stated above at point 77 regarding the lawfulness of it being possible for the Commission to set the amount of export refunds at nil, the reduction brought about by the contested regulation merely followed the same trend of lowering the amount of export refunds. To hold otherwise would lead to the absurd conclusion that the duty to give reasons would have been complied with if the Commission had instead proposed to set the amount of refunds at EUR 0.01 per 100 kg. The General Court therefore did not err when it stated, in paragraph 245 of the judgment under appeal, that the sole fact that the amount of export refunds was set at zero does not automatically mean that the Commission broke with its previous practice, and that a change to those amounts is inherent in the system of periodical setting of those amounts, so that the same line of reasoning may cover amounts which are very different and also an amount set at zero. The appellant’s reference to the judgment in National Iranian Oil Company, ( 48 ) which essentially replicates the case-law stated above at point 86 within the area of asset-freezing measures, does not show that the contested regulation went substantially further than its predecessors.

99. It follows from the above that Tilly-Sabco’s arguments that the General Court misinterpreted Article 296 TFEU must be dismissed.

(b) Contradictory statements and other arguments

100. First, the alleged contradiction and distortion of the evidence, which the appellant claims is apparent from paragraphs 320 and 321 of the judgment under appeal, is without merit. The fact that the General Court held, on the one hand, that imports increased faster than exports and, on the other hand, that the value of imports dwindled, are not mutually contradictory statements, nor does it amount in any way to distortion of the evidence. In that respect, the appellant fails to indicate precisely the evidence alleged to have been distorted by the General Court and to show the errors of appraisal which led to such a distortion. ( 49 )

101. Second, as for paragraphs 253 to 255 of the judgment under appeal, which Tilly-Sabco argues are contradictory in view of the politically motivated gradual reduction of the amount of export refunds, no tension between those two statements arises on any reading, regardless of the merits of Tilly-Sabco’s theory.

102. Third, the appellant is wrong to criticise the General Court for failing to hold, in paragraph 259 of the judgment under appeal, that the amount of export refunds was set on account of a commitment undertaken at the international level. The fact that the Commission stated, in its defence before the General Court, that the ‘evolution of the [common agricultural policy] takes account of the ongoing negotiations within the Doha development round of the World Trade Organisation [“WTO”] and the position taken by the Union in that context in relation to refunds’, in no way refers to any specific international obligation.

103. Lastly, I detect no contradiction between paragraphs 53 and 54 of the judgment under appeal, which recognise that exporters will not apply for export refunds if the applicable rate has been set at EUR 0 and, on the other hand, its paragraphs 267 and 268, which do not rule out the possibility for national authorities of granting export refunds for an amount of EUR 0, even though no applications will in all likelihood be submitted. Indeed, Tilly-Sabco’s reading of those passages omits to take account of their context: in paragraphs 53 and 54, the General Court was considering whether the contested regulation ‘entailed’ implementing measures for the purpose of verifying the appellant’s legal standing under the fourth paragraph of Article 263 TFEU. In paragraphs 267 and 268 however, the analysis was entirely different: namely whether Article 164(2) of Regulation No 1234/2007 permitted the setting of export refunds at zero. If the two things were as intertwined as the appellant suggests is the case, then it is doubtful that the appellant would have had standing to bring these proceedings.

104. It follows from all the above that the appellant’s arguments that the General Court contradicted itself, distorted the facts and misinterpreted the Commission’s written submission must be dismissed.

(c) Improper lowering of the standard of judicial review

105. The General Court correctly identified the applicable standard for judicial review in paragraph 276 of the judgment under appeal: namely, that the EU legislature enjoys a wide discretion in matters concerning agriculture. Such is the case as regards the choice of whether to carry out a revision of the rules in force concerning frozen chickens. Consequently, judicial review must be limited to verifying that the measure in question is not vitiated by any manifest error or misuse of powers and that the authority concerned has not manifestly exceeded the limits of its discretion. ( 50 )

106. The appellant does not challenge the judgment under appeal for failing to identify the correct standard for judicial review. It does not challenge that judgment either for applying covertly a standard less favourable to it, ( 51 ) or because the standard applied breaches Article 47 of the Charter. Rather, it seems that Tilly-Sabco essentially challenges the interpretation given by the General Court of the scope of the Commission’s discretion under Article 164 of Regulation No 1234/2007. As the Commission points out, this part of the third ground appears to be an emanation of the general disagreement between the parties on the purpose of export refunds.

107. In that regard, I should call to mind that the system of export refunds is intended to produce stability in the common market and to ensure that agricultural products can be sold to non-EU countries. ( 52 ) In particular, export refunds do not serve to ensure exporters a decent income. Rather, their purpose is to enable swift and effective advance intervention in a rapidly changing market. Furthermore, frequent change is a central characteristic of the system of EU agricultural law, and legislation must constantly be adapted to changing economic circumstances and changing policy priorities. ( 53 )

108. In my view, the General Court was correct to hold, in paragraph 293 of the judgment under appeal, that, given the use of the terms ‘one or more’ in Article 164(3) of Regulation No 1234/2007, the Commission may place emphasis on one of the aspects listed in that provision. The Commission may even lawfully limit itself to only one aspect. In this case, the General Court held, at paragraph 291 of its judgment, that the Commission had placed emphasis on the need to ensure equilibrium and the natural development of prices and trade on the market, mentioned in Article 164(3)(b) thereof. ( 54 )

109. Contrary to what the appellant argues, that finding is not at odds with paragraph 401 ( 55 ) of the judgment under appeal. Indeed, the General Court did not say there that the aspects listed in Article 164(3) of Regulation No 1234/2007 carried equal weight. What the General Court did was to respond to the appellant’s argument that the Commission contradicted itself when claiming to afford equal importance to the theoretical calculation and the market analysis methods yet placed, in the final analysis, more emphasis on the latter. However, those two methods are not ‘aspects’ within the meaning of Article 164(3) of Regulation No 1234/2007, but rather tools for setting the appropriate amount of export refunds. The appellant therefore misconstrues the judgment under appeal.

110. As it stands, the remaining arguments contained in this part of the third ground of appeal are, in so far as they are intelligible and admissible, based on a series of misunderstandings and/or misrepresentations of that judgment.

111. First, in paragraph 401 of the judgment under appeal, the General Court did rule on the appellant’s argument mentioned in paragraph 400 thereof. That finding represents the view of that court, and hence cannot amount to distortion of the position of the parties. In any event, the appellant has not argued that the General Court ruled ultra petita.

112. Second, the appellant is plainly incorrect when it states that the General Court held, in paragraph 300 of the judgment under appeal, that ‘the theoretical calculation of the amount of refunds is not explained by the documents submitted to the Management Committee’. ( 56 )

113. Lastly, the contention that the General Court erred in not requiring the Commission to provide it with the theoretical calculation, and therefore could not consider whether the balance struck between the Commission’s theoretical calculation and its market analysis amounted to a manifest error of assessment, is wrong. In the first place, it is not for the parties, but for the General Court, to decide to adopt measures of organisation of the procedure and/or of inquiry if it considers it necessary. ( 57 ) In the second place, in paragraph 398 of the judgment under appeal, the General Court held that, as recognised by the Commission, although the theoretical calculation had produced a positive result, the Commission could lawfully set the amount of export refunds at nil on account of the factors set out in paragraph 292 of that judgment. ( 58 ) Hence, even without details on the theoretical calculation, the General Court was able to consider the difference between the two methods. In the last place, the appellant’s view amounts, in essence, to asking the General Court to exercise the discretion which Regulation No 1234/2007 instead confers upon the Commission.

114. It follows that this part of the third ground of appeal must be dismissed and so, consequently, must that ground in its entirety.

E. Fourth ground of appeal: infringement of Article 164(3) of Regulation No 1234/2007 or manifest error of assessment

1. Arguments of the parties

115. Tilly-Sabco argues, in the first part of the fourth ground of appeal, that the General Court contradicted itself when reviewing whether the Commission had taken due account of the aspects listed in Article 164(3) of Regulation No 1234/2007, in that the General Court compared a decline in prices in the United States of America in 2013, in paragraph 301 of the judgment under appeal, with the market situation in Brazil from 2009 to 2013 in paragraph 302 thereof, and that the General Court ought to have considered the latest data available.

116. In the second part of the fourth ground of appeal, the appellant claims that the General Court breached Article 164(3)(b) of Regulation No 1234/2007 by upholding, in paragraph 289 of the judgment under appeal, the Commission’s assessment that the difference in prices as compared to poultry originating from Brazil did not require payment of export refunds. Moreover, in its view, the General Court also breached that provision by limiting its review to the world market without taking the EU market into consideration.

117. In the third part of that ground of appeal, Tilly-Sabco alleges that the General Court failed, at paragraph 366 of the judgment under appeal, to censure the Commission for not taking into account the exact state of demand for chicken, and that it contradicted itself at paragraph 368 thereof. Moreover, Tilly-Sabco argues that the General Court failed, in paragraph 350 et seq. of that judgment, to draw the conclusions from the price increase in animal foodstuffs on the margins of the producers. It criticises that court for similarly failing to draw the consequences of the errors committed by the Commission, identified at paragraphs 350 to 356 and 360 and 361 thereof, and for distorting the evidence at paragraph 369 of that judgment, which it claims showed a downward trend for demand for poultrymeat in 2013.

118. The Commission contests those arguments.

2. Assessment

119. The three parts of this ground of appeal contain what is essentially a series of different critiques of the review conducted by the General Court of the Commission’s exercise of its discretion under Article 164(3) of Regulation No 1234/2007. I consider none of them to be justified and shall deal with them successively.

120. To begin with, the contradiction which Tilly-Sabco argues arises between paragraphs 300 and 301 of the judgment under appeal is not there: the fact that, when considering the evolution in prices of fresh chicken, the General Court took account only of the year 2013 for the United States of America does not mean that it contradicted itself by taking a broader period into account as regards Brazil. Nothing in the wording of Article 164(3) of Regulation No 1234/2007 requires the Commission to limit its comparative assessment of price evolutions to specific periods (even though it would arguably defeat the purpose of a comparison not to do so). Although the appellant is correct to point out that Article 164(3)(a) thereof refers to the ‘existing situation’ on the EU and world markets, as stated above at point 108, the Commission may place special emphasis on other aspects listed in Article 164(3) thereof, which the General Court concluded that it had in this case. In any event, paragraphs 300 and 301 of the judgment under appeal are not contradictory, as the General Court held in both paragraphs that the decline in prices in those countries only occurred at the end of 2013.

121. Next, Tilly-Sabco’s argument that the General Court failed to hold that the Commission made a manifest error of assessment by not setting export refunds in the light of the estimated difference in price, recognised in paragraph 289 of the judgment under appeal, between the prices of chicken on the internal market and poultry originating in Brazil of EUR 44.73 per 100 kg, must be dismissed. That difference in price might stem from the fact that the compared products were not poultry from both regions but rather chicken and poultry. Also, Tilly-Sabco fails to state that in that same paragraph, the Commission pointed out that the prices for chicken on the internal market were high. ( 59 ) That led the General Court to rule, in paragraph 292, that the Commission could lawfully consider that it was not necessary to set export refunds of a positive amount in order to ensure the stability of the market — a paragraph which the appellant does not contest. And rightly so: as mentioned above at point 107, export refunds do not serve to ensure exporters a decent income. Accordingly, traders cannot require the Commission to set the level of refunds at a particular amount.

122. As for the argument that the General Court breached Article 164(3)(b) of Regulation No 1234/2007 by limiting its assessment to one market, whether it be the internal market or the world market, ( 60 ) those two markets are mentioned only in subparagraphs (a) and (i). However, the General Court held that the Commission afforded particular weight to subparagraph (b), which does not refer to those two markets. ( 61 )

123. Turning to the third part of the fourth ground of appeal, I consider the appellant to be wrong to argue that the General Court failed to grasp, at paragraph 366 of the judgment under appeal, that Article 164(3) of Regulation No 1234/2007 requires the Commission to know the exact state of the evolution in demand for chicken on the EU and world markets. On the contrary, the General Court was correct to hold that the price is the meeting point between offer and demand, and that an analysis of the evolution in prices necessarily takes account of demand. Moreover, as for the appellant’s counterargument that an increase in price reflects an imbalance in the evolution in offer and/or demand, prices may very well incorporate a planned evolution of offer and demand. That argument must therefore be dismissed, and so must the alleged contradiction between paragraphs 366 and 368 of the judgment under appeal, which only arises if the appellant’s view of the correlation between price and demand is accepted.

124. Next, the appellant’s argument that the General Court failed, in paragraph 350 et seq. of the judgment under appeal, to draw the appropriate conclusions from the price increase in animal foodstuffs on the margins of the producers is baseless: in paragraph 351, the General Court does exactly that.

125. In the penultimate place, the appellant’s argument that paragraphs 350 to 356 and 360 and 361 of the judgment under appeal arguably show that the Commission presented the General Court with information different from that which it gave the Management Committee, cannot affect the lawfulness of the contested regulation, which must be assessed not on the basis of what the Commission presented to the General Court, but on the facts and the law as they stood at the time when that regulation was adopted. That argument is therefore ineffective. The same is true for the fact that the General Court held it necessary, in paragraph 360 of the judgment under appeal, to nuance the statements made in the Commission’s defence concerning the prices of foodstuffs. In any event, the irrelevance of those circumstances is confirmed by the fact that, as stated by the Commission, the appellant has not challenged the second and third sentences of paragraph 361 of that judgment, which inter alia held that the issue of when foodstuffs became more expensive was not decisive.

126. Lastly, regarding the claim that the General Court distorted the evidence at paragraph 369 of the judgment under appeal by considering that the Commission had taken account, in particular, of an increase in demand for chicken, that paragraph merely reproduces the view of the appellant and does not purport to establish the facts. Hence, it cannot contain that alleged distortion. As for the appellant’s critique of paragraph 371 of that judgment, which the appellant links to its allegation of distortion of the evidence in paragraph 369 thereof, the appellant fails to prove that the General Court distorted that evidence or erred in law in that paragraph. As the Commission rightly observes, the appellant does not challenge paragraph 370 of the judgment under appeal, where the General Court held that the appellant’s contentions relating to a slowdown in the increase of the production and consumption of poultrymeat meant that an increase in the production and demand still existed, as well as an expectation of production growth, although at a lower rate than before.

127. This last ground of appeal is unfounded and must therefore be rejected. In consequence, so must the appeal in its entirety.

VI. Conclusion

128. In light of the foregoing considerations, I propose that the Court should dismiss the appeal, and order the appellant to bear the costs.

( 1 ) Original language: English.

( 2 ) Judgment of 14 January 2016, Tilly-Sabco v Commission, T-397/13, EU:T:2016:8 (‘the judgment under appeal’).

( 3 ) Commission Implementing Regulation of 18 July 2013 fixing the export refunds on poultrymeat (OJ 2013 L 196, p. 13) (‘the contested regulation’).

( 4 ) Regulation of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13).

( 5 ) Council Regulation of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2007 L 299, p. 1), as modified.

( 6 ) Council Decision of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23).

( 7 ) Commission Regulation of 17 June 2010 fixing the export refunds on poultrymeat (OJ 2010 L 152, p. 5).

( 8 ) Commission Implementing Regulation of 18 October 2012 fixing the export refunds on poultrymeat (OJ 2012 L 288 p. 6).

( 9 ) Commission Implementing Regulation of 17 January 2013 fixing the export refunds on poultrymeat (OJ 2013 L 14, p. 15).

( 10 ) Commission Implementing Regulation of 18 April 2013 fixing the export refunds on poultrymeat (OJ 2013 L 109, p. 27).

( 11 ) Commission Implementing Regulation of 20 October 2011 fixing the export refunds on poultrymeat (OJ 2011 L 276, p. 31).

( 12 ) Order of 26 September 2013, Tilly-Sabco v Commission, T‑397/13 R, not published, EU:T:2013:502.

( 13 ) Judgment of 14 January 2016, Doux v Commission, T‑434/13, not published, EU:T:2016:7.

( 14 ) Judgment of 14 January 2016, France v Commission, T‑549/13, EU:T:2016:6.

( 15 ) See paragraphs 39 to 68 of the judgment under appeal.

( 16 ) See paragraph 27 of the judgment under appeal. Specifically, the Commission neither challenged the notion that the contested regulation was a regulatory act nor that the appellant was directly affected by it, see paragraphs 33 and 38 thereof.

( 17 ) Under Article 150 of the Rules of Procedure of the Court of Justice, applicable to the appeal procedure by virtue of Article 190(1) thereof, ‘the Court may at any time of its own motion … decide to rule by reasoned order on whether there exists any absolute bar to proceeding with a case’ (emphasis added); see also judgment of 27 February 2014, Stichting Woonlinie and Others v Commission, C‑133/12 P, EU:C:2014:105, paragraph 32. The question whether a challenged measure ‘entails’ implementing measures for the purpose of the fourth paragraph of Article 263 TFEU is currently the subject of appeals pending before the Grand Chamber of the Court; see Cases C‑244/16, Industrias Químicas del Vallés v Commission, and C‑384/16 P, European Union Copper Task Force v Commission.

( 18 ) Standard rules of procedure — Council Decision 1999/468/EC — Rules of procedure for the … committee (OJ 2001 C 38, p. 3, footnote 6).

( 19 ) The Management Committee’s rules of procedure were submitted by the Commission in the proceedings at first instance as annex to its defence.

( 20 ) Article 127(1) of the Rules of Procedure of the Court of Justice, applicable to the appeal procedure by virtue of Article 190(1) thereof. At any rate, the Standard rules of procedure are not relevant if the committee in question has adopted its own rules of procedure, as is the case here, see judgment of 25 October 2005, Germany and Denmark v Commission, C‑465/02 and C‑466/02, EU:C:2005:636, paragraph 31.

( 21 ) Article 8(5) of Regulation No 182/2011 (‘Immediately applicable implementing acts’) provides: ‘where the Commission adopts provisional anti-dumping or countervailing measures, the procedure provided for in this Article shall apply. The Commission shall adopt such measures after consulting or, in cases of extreme urgency, after informing the Member States. In the latter case, consultations shall take place 10 days at the latest after notification to the Member States of the measures adopted by the Commission’ (emphasis added). See also recital 16 of the regulation.

( 22 ) See recitals 5 and 11 of Regulation No 182/2011.

( 23 ) See, as examples thereof, judgments of 14 January 1987, Germany v Commission, 278/84, EU:C:1987:2, paragraph 12 to 16; and of 10 February 1998, Germany v Commission, C‑263/95, EU:C:1998:47, paragraphs 26 to 32.

( 24 ) Judgment of 23 February 1988, United Kingdom v Council, 68/86, EU:C:1988:85, paragraph 48.

( 25 ) Judgments of 7 May 1991, Nakajima v Council, C‑69/89, EU:C:1991:186, paragraphs 49 and 50, and of 13 September 2007, Common Market Fertilizers v Commission, C‑443/05 P, EU:C:2007:511, paragraph 145.

( 26 ) Judgments of 15 June 1994, Commission v BASF and Others, C‑137/92 P, EU:C:1994:247, paragraphs 76 and 77, and of 13 September 2007, Common Market Fertilizers v Commission, C‑443/05 P, EU:C:2007:511, paragraph 147 and 148.

( 27 ) Compare in that regard with the judgment of 15 June 1994, Commission v BASF and Others, C‑137/92 P, EU:C:1994:247, paragraph 72.

( 28 ) For a criticism of the lack of rights of private individuals in the comitology procedure, see the Opinion of Advocate General Geelhoed in Joined Cases Alliance for Natural Health and Others, C‑154/04 and C‑155/04, EU:C:2005:199, points 80 to 85. The Court did not invalidate the measure at issue in that case; see judgment of 12 July 2005, Alliance for Natural Health and Others, C‑154/04 and C‑155/04, EU:C:2005:449, paragraphs 81 and 82.

( 29 ) See, by analogy, judgment of 11 January 2001, Monte Arcosu, C‑403/98, EU:C:2001:6, paragraphs 26 and 28.

( 30 ) See judgment of 14 January 1987, Germany v Commission, 278/84, EU:C:1987:2, paragraph 13. See also, regarding the standard of judicial review regarding the existence of a risk of a disturbance in trade in agricultural products, the judgment of 25 January 1979, Racke, 98/78, EU:C:1979:14, paragraphs 4 and 5.

( 31 ) See judgment of 14 January 2016, France v Commission, T‑549/13, EU:T:2016:6, paragraph 18.

( 32 ) See, by analogy, judgment of 15 March 2006, Italy v Commission, T‑226/04, not published, EU:T:2006:85, paragraphs 38 to 41.

( 33 ) See, in that regard, the judgment of 25 October 2005, Germany and Denmark v Commission, C‑465/02 and C‑466/02, EU:C:2005:636, paragraphs 36, 38 and 40, where the Court held that the fact that an invitation to a committee meeting was sent less than 14 days beforehand and that there was no German-language version of the two documents to be discussed at that meeting could not have had any effect on the measure ultimately adopted.

( 34 ) The revocation of an act of the institutions is an exceptional measure with retrospective effects and can therefore only be explicit; see, to that effect, judgment of 8 November 2001, Silos, C‑228/99, EU:C:2001:599, paragraph 19.

( 35 ) Judgment of 22 September 2016, Parliament v Council, C‑14/15 and C‑116/15, EU:C:2016:715, paragraph 48 and the case-law cited.

( 36 ) Summary drawn up on 22 October 2013 of the 435th meeting of the Management Committee for the Common Organisation of the Agricultural Markets of 17 October 2013, document No ARES REG agri.ddg2.c.4(2013) 3316233, point 9.1.1 (available at https://ec.europa.eu/agriculture/sites/agriculture/files/committees/cmo-management/2013/435.pdf).

( 37 ) In fact, apart from citing that provision in the initial part of the appeal, no mention is made of Article 162(1) of Regulation No 1234/2007 at any point in the part devoted to its legal arguments. While the appellant’s reply refers to that provision, it does so only in response to a preliminary point raised by the Commission in its response concerning the aim of the system of export refunds.

( 38 ) Judgment of 10 December 2013, Commission v Ireland and Others, C‑272/12 P, EU:C:2013:812, paragraph 28 and the case-law cited.

( 39 ) Judgment of 14 March 1973, Westzucker, 57/72, EU:C:1973:30, paragraph 8. Export refunds and denaturing of sugar have, in some respects, an identical function within the common organisation of the market; see Opinion of Advocate General Mayras in Westzucker, 57/72, EU:C:1973:20, point 2.

( 40 ) Judgments of 2 April 1998, Commission v Sytraval and Brink’s France, C‑367/95 P, EU:C:1998:154, paragraph 63; and of 10 March 2016, HeidelbergCement v Commission, C‑247/14 P, EU:C:2016:149, paragraph 16.

( 41 ) Judgments of 9 September 2004, Spain v Commission, C‑304/01, EU:C:2004:495, paragraph 51; and of 9 June 2016, Pesce and Others, C‑78/16 and C‑79/16, EU:C:2016:428, paragraph 89.

( 42 ) Judgments of 28 October 1982, Lion and Others, 292/81 and 293/81, EU:C:1982:375, paragraph 19; of 22 January 1986, Eridania zuccherifici nazionali and Others, 250/84, EU:C:1986:22, paragraph 38; and of 6 July 2000, Eridania, C‑289/97, EU:C:2000:363, paragraph 40.

( 43 ) Judgments of 1 December 1965, Schwarze, 16/65, EU:C:1965:117, p. 888; and of 4 February 1990, Delacre and Others v Commission, C‑350/88, EU:C:1990:71, paragraph 16.

( 44 ) To that effect, see judgments of 26 November 1975, Groupement des fabricants de papiers peints de Belgique and Others v Commission, 73/74, EU:C:1975:160, paragraph 31; of 4 February 1990, Delacre and Others v Commission, C‑350/88, EU:C:1990:71, paragraph 15; and of 8 November 2001, Silos, C‑228/99, EU:C:2001:599, paragraph 28.

( 45 ) That statement is not affected by the fact that, in its appeal, the appellant claims, in relation to the part of the second part of the third ground of appeal concerning the alleged improper lowering of the standard of judicial review, that the appellant had made clear that neither the appellant nor the General Court had an opportunity of verifying or challenging the specific elements of the Commission’s usual practice.

( 46 ) Judgment of 8 November 2001, Silos, C‑228/99, EU:C:2001:599, paragraph 29.

( 47 ) Judgment of 14 February 1990, Delacre and Others v Commission, C‑350/88, EU:C:1990:71, paragraphs 17 to 19.

( 48 ) Judgment of 1 March 2016, National Iranian Oil Company v Council, C‑440/14 P, EU:C:2016:128, paragraph 60 et seq.

( 49 ) See, among others, judgment of 30 November 2016, Commission v France and Orange, C‑486/15 P, EU:C:2016:912, paragraph 99 and the case-law cited.

( 50 ) Judgment of 30 June 2016, Lidl, C‑134/15, EU:C:2016:498, paragraph 47 and, to that effect, judgment of 9 March 2017, Doux, C‑141/15, EU:C:2017:188, paragraph 26.

( 51 ) As was the situation in the case giving rise to the Opinion of Advocate General Sharpston in KME Germany and Others v Commission, C‑272/09 P, EU:C:2011:63, see points 71 to 73.

( 52 ) Whereas recital 65 of Regulation No 1234/2007 states that ‘a single [EU] market involves a trading system at the external borders of the [Union]. That trading system should include import duties and export refunds and should, in principle, stabilise the [EU] market. The trading system should be based on the undertakings accepted under the Uruguay Round of multilateral trade negotiations’, its recital 77 states that ‘provisions for granting refunds on exports to third countries, based on the difference between prices within the [Union] and on the world market, and falling within the limits set by the [Union]’s commitments in the WTO, should serve to safeguard the [Union]’s participation in international trade in certain products falling within this Regulation. Subsidised exports should be subject to limits in terms of value and quantity’.

( 53 ) See the Opinion of Advocate General Geelhoed in Silos, C‑228/99, EU:C:2001:196, point 32, citing the judgment of 8 April 1992, Wagner, C‑94/91, EU:C:1992:181, paragraph 18. See also, to that effect, judgments of 14 March 1973, Westzucker, 57/72, EU:C:1973:30, paragraphs 6 and 8; of 26 January 1978, Union Malt and Others v Commission, 44/77 to 51/77, EU:C:1978:14, paragraphs 23 and 28 (regarding the special situation of export licences fixing the refund in advance); of 28 October 1982, Lion and Others, 292/81 and 293/81, EU:C:1982:375, paragraph 14; and of 9 March 2017, Doux, C‑141/15, EU:C:2017:188, paragraph 36.

( 54 ) While the Commission stated at the hearing that it had considered both aspects mentioned in Article 164(3)(a) and (b) of Regulation No 1234/2007, it did not object to the finding made at paragraph 291 of the judgment under appeal.

( 55 ) The reference in the appeal to paragraph 400 of the judgment under appeal seems erroneous, as that paragraph reproduces the view of the appellant.

( 56 ) In paragraph 300 of the judgment under appeal, the General Court stated that ‘the document submitted to the Management Committee is not designed for explaining the theoretical calculation of the amount of export refunds, but above all for presenting the global market situation’.

( 57 ) See, to that effect, order of 31 January 2017, Universal Protein Supplements v EUIPO, C‑485/16 P, not published, EU:C:2017:72, paragraph 15 and the case-law cited.

( 58 ) Paragraph 292 of the judgment under appeal states that an increase in price on the EU market, the existence of margins for EU producers greater than the historic average and an increase in exports are all elements which may, in principle, allow the Commission to consider, without committing a manifest error of assessment, that the situation on the EU market is stable and that it is not necessary to set export refunds at a positive amount in order to ensure the stability of the market.

( 59 ) Similarly, as stated by the Commission, the appellant does not challenge the finding made at paragraph 306 of the judgment under appeal that a document submitted to the Management Committee showed a clear upward trend in prices on the EU market in the long and short terms.

( 60 ) The appeal is incoherent on this point, stating that ‘the General Court only took account of the prices on the internal market, the high costs of foodstuffs and the devaluation of the Brazilian real; it therefore only based itself on the world market’.

( 61 ) That is confirmed by the other language versions of that provision. The use, in the French wording of Article 164(3)(b) of Regulation No 1234/2007, of the plural form (‘marchés’) is not meant to refer back to the EU and world markets mentioned in Article 164(3)(a) and (i), but rather to the common market organisation, which takes the plural in that language (‘organisation commune des marchés’).