EN Official Journal of the European Union C 113/69

Action brought on 3 March 2010 — Südzucker and Others v Commission

(Case T-102/10)

2010/C 113/102

Language of the case: German

Parties

Applicants: Südzucker AG Mannheim/Ochsenfurt (Mannheim, Germany), AGRANA Zucker GmbH (Vienna, Austria), Südzucker Polska S.A. (Breslau, Poland), Raffinerie Tirlemontoise SA (Brussels, Belgium), Saint Louis Sucre SA (Paris, France) (represented by: H.-J. Prieß and B. Sachs)

Defendant: European Commission

Form of order sought

— Annul Commission Regulation (EC) No 1193/2009 of 3 November 2009 correcting Regulations (EC) No 1762/2003, (EC) No 1775/2004, (EC) No 1686/2005, (EC) No 164/2007 and fixing the production levies in the sugar sector for marketing years 2002/2003, 2003/2004, 2004/2005, 2005/2006;

— Order the defendant to pay the costs.

Pleas in law and main arguments

The applicants put forward several pleas in law in support of their action.

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

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

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

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

Lastly, under the heading ‘other errors of law’, the applicants submit that when the Commission adopted a production levy regulation for the 2002/2003 to 2005/2006 marketing years on 3 November 2009, it no longer had power to do so, because Regulation No 1260/2001, which the Commission indicated as the legal basis, was no longer in force when the Regulation was adopted. In addition, there was an infringement of Article 37(2) EC, because on the basis of that provision a different procedure should have been chosen for the adoption of the Regulation.

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