Case T‑397/13

(publication by extracts)

Tilly-Sabco

v

European Commission

‛Agriculture — Export refund — Poultrymeat — Implementing Regulation fixing the refund at EUR 0 — Action for annulment — Regulatory act not entailing implementing measures — Whether directly concerned — Admissibility — Article 3(3) of Regulation (EU) No 182/2011 — Obligation to state reasons — Article 164(3) of Regulation (EC) No 1234/2007 — Legitimate expectations’

Summary — Judgment of the General Court (Fifth Chamber), 14 January 2016

See the text of the decision. (see paras 30-32)

There is no reason why the concept of direct effect, as required in the case of regulatory acts in the context of the third situation referred to in the fourth paragraph of Article 263 TFEU, should be interpreted differently from the way in which it is interpreted in the context of the second situation referred to in the fourth paragraph of Article 263 TFEU, namely in the case of acts which are of ‘direct and individual’ concern to a natural or legal person. The ‘direct concern’ condition requires, first, that the contested measures must directly affect the legal situation of the individual and, second, that it must leave no discretion to the addresses of the measure, who are entrusted with the task of implementing it, such implementation being purely automatic and resulting solely from the contested rules without the application of other intermediate rules. In the case of an action against Regulation No 689/2013 fixing the amount of export refunds in the poultrymeat sector at zero, that regulation has a direct legal effect on a company active in the export of deep-frozen chickens, in that it can no longer benefit from export refunds having a positive amount. As the amount of the export refunds was fixed at zero by the contested regulation, that regulation leaves no discretion in that respect to the national authorities entrusted with the task of allocating the refunds. Even if an export refund were granted by a national authority, it would automatically be at an amount equal to zero, in so far as the contested regulation leaves no discretion to the national authorities that would allow them to fix an export refund at a positive amount. The said company is therefore directly concerned by the contested regulation. (see paras 34-37)

See the text of the decision. (see paras 39-41)

In the light of the wording of the third situation referred to in the fourth paragraph of Article 263 TFEU, only measures which the organs or bodies of the EU or the national authorities adopt in the normal course of events can constitute implementation measures. If, in the normal course of events, the organs or bodies of the EU and the national authorities do not adopt any measure in order to implement the regulatory act and to specify the consequences of that act for each of the operators concerned, that regulatory act does not ‘entail’ any implementing measures. In that regard, according to the wording of the third situation referred in the fourth paragraph of Article 263 TFEU, it is not sufficient that the regulatory act ‘may entail’ implementing measures, but it is necessary that it ‘entails’ implementing measures. It is thus not sufficient for an operator to be able, in a contrived manner, to oblige the administration to adopt a measure that would be open to appeal, because such a measure is not a measure that the regulatory act ‘entails’. In the case of an action against Regulation No 689/2013 fixing the amount of export refunds in the poultrymeat sector at zero, the relevant question for the purpose of determining whether the contested regulation ‘entails’ implementing measures is not whether there is nothing to prevent the operators concerned from applying for an export licence with advance fixing of the export refunds, but whether, in the normal course of events, operators will submit such applications. In that regard, since there is no requirement to obtain an export licence, and since the export refunds that may be fixed will in any event be at an amount equal to zero, in the normal course of events, the operators concerned will not submit applications to the national authorities for export licences with advance fixing of export refunds. In the absence of such applications, the national authorities will not adopt any measure in order to implement Regulation No 689/2013. Those authorities will therefore not adopt such measures in the normal course of events. There will therefore be no measure specifying the consequences which the contested regulation has with regard to the various operators concerned. In that regard, the fact that an application is lodged with a national authority for the sole purpose of being able to have access to a court implies that that application will not be submitted in the normal course of events. As the national authority has no choice other than to fix the amount of the refunds at zero, an exporter can have no interest in having the refunds fixed by the national authority in those circumstances, except in order to secure, in an ‘artificial’ manner, the adoption of an act that could form the subject-matter of an action. It follows from the foregoing that Regulation No 689/2013 does not ‘entail’ implementing measures. That result is not called into question by an argument that it would be paradoxical if the admissibility of an action were to depend on the level of the refunds and if the regulation had to be considered not to entail implementing measures where the amount of the refunds was fixed at zero, whereas when that amount was fixed at a level above zero the challengeable act is the implementing measure adopted at national level. The question whether a regulatory act entails implementing measures must be examined in the light of all the circumstances of the case. In that regard, the question whether a regulatory act entails implementing measures should be assessed by reference to the position of the person pleading the right to bring proceedings. It is therefore possible that the same regulation may be challenged before the EU judicature by certain operators, because it is of direct concern to them and does not entail implementing measures with regard to them, while it does entail implementing measures with regard to other operators. A fortiori, it cannot be precluded that a regulation fixing the amount of refunds at zero does not entail implementing measures, whereas a similar regulation fixing refunds at a positive amount does entail such measures. (see paras 43-45, 53, 54, 58, 62-65)

The first sentence of the second subparagraph of Article 3(3) of Regulation No 182/2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers does not in principle preclude the submission of a draft implementing act during the meeting of the management committee provided for in Article 195 of Regulation No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation). The first sentence of the second subparagraph of Article 3(3) of Regulation No 182/2011 provides for a period of at least 14 days between the date of submission of the draft implementing act and the date of the meeting of the management committee, which must be observed ‘except in duly justified cases’. It is therefore possible to derogate from the rule that draft regulations are to be submitted 14 days before the meeting of the management committee and Regulation No 182/2011 does not specify a minimum period that must be observed. Owing to the words ‘except in duly justified cases’, at the beginning of the first sentence of the second subparagraph of Article 3(3) of Regulation No 182/2011, that first sentence does not preclude a draft regulation being submitted to the management committee while it is sitting. Moreover, the wording in the second subparagraph of Article 3(3) of Regulation No 182/2011 to the effect that the committee members must have an ‘early’ opportunity to examine the draft must be read in the light of the fact that the time limit must, according to the same provision, be ‘proportionate’. The word ‘early’ does not necessarily mean that the draft regulation must be submitted to the management committee before the date of the meeting. Where a period of several minutes or, as the case may be, several quarter hours is ‘proportionate’ in the light of the circumstances, that submission must be considered to be a submission made ‘early’ within the meaning of the third sentence of the second subparagraph of Article 3(3) of Regulation No 182/2011. (see paras 85, 86, 90, 91)

It follows from the wording of the second sentence of the second subparagraph of Article 3(3) of Regulation No 182/2011 that it is for the chair of the management committee provided for in Article 195 of Regulation No 1234/2007, and therefore for a representative of the Commission, to decide on the urgency of the question to be examined by the said committee. Review by the EU judicature is limited to examining the existence of a manifest error of assessment or a misuse of powers. (see para. 114)

An authority or a sub-delegation is not conferred on a natural person, but on a person occupying an office or post, namely the Member of the Commission responsible for a specific field or the Director-General of a specific Directorate General. Thus, it remains valid where the person occupying that office or post has changed. It follows that there is no need for the Commission’s Rules of Procedure to make express provision that a specific sub-delegation should remain valid after a change in the person to whom the authority was delegated and the person who delegated it. The possibility of conferring authority or a sub-delegation is intended to relieve the College of Commissioners or the Member of the Commission in question of the task of taking decisions that do not need to involve the College or the Member of the Commission in question. The purpose of the decision to confer an authority or a sub-delegation is to allocate powers within the Commission and does not amount to proof that confidence is placed in a particular natural person. In the absence of a specific decision to the contrary, no power is conferred ad personam. (see paras 202, 203)