Case T-707/18: Action brought on 29 November 2018 — Tilly-Sabco v Council and Commission
Date: 2018-11-29
Institutions: General Court
Subjects: common organisation of markets, export (EU), export refund, indemnification, interest, legal basis, poultrymeat, regulation (EU)








C_2019054EN.01002201.xml










11.2.2019   


EN


Official Journal of the European Union


C 54/22






Action brought on 29 November 2018 — Tilly-Sabco v Council and Commission
(Case T-707/18)
(2019/C 54/37)
Language of the case: French

Parties


Applicant: Tilly-Sabco (Guerlesquin, France) (represented by: R. Milchior and S. Charbonnel, lawyers)

Defendants: European Commission, Council of the European Union

Form of order sought

The applicant claims that the Court should:






—


declare admissible the action seeking annulment of Council Regulation (EU) 2018/1277 of 18 September 2018 (OJ 2018 L 239, p. 1), which fixes at zero the export refunds on poultrymeat;




consequently,






—


annul Council Regulation (EU) 2018/1277 of 18 September 2018 (OJ 2018 L 239, p. 1), which fixes at zero the export refunds on poultrymeat;










—


rule primarily that the Council was at fault in adopting Council Regulation (EU) 2018/1277 of 18 September 2018, which is to be annulled by the Court;










—


rule, in the alternative, if and only if the Commission is not found to be liable in the proceedings in Case T-437/18, that the Commission was at fault in requiring the Council to adopt Regulation (EU) 2018/1277 of 18 September 2018, which is to be annulled by the Court;










—


rule, in the further alternative, if and only if the Commission is not found to be liable in the proceedings in Case T-437/18, that the Council and the Commission were at fault in adopting Regulation (EU) 2018/1277 of 18 September 2018, which is to be annulled by the Court;










—


rule that the company Tilly-Sabco suffered harm as a result of the error made by the Council and/or the Commission;




consequently,






—


primarily,






—


rule that the Council is liable to pay to the applicant the principal sum of EUR 3 238 000, of which:






—


EUR 2 848 000 correspond to refunds not received in connection with sales carried out between 19 July and 31 December 2013;










—


EUR 390 000 correspond to refunds relating to the loss of profit resulting from the failure to achieve 3 550 additional tonnes of sales to countries in the Middle East over the course of the same period;














—


order the Council to pay the principal sum of EUR 3 238 000,






—


reassessed by applying compensatory interest, starting from the date of adoption of annulled Regulation (EU) No 689/2013 and continuing up to the date of delivery of the judgment in the present proceedings, on the basis of the annual rate of inflation determined, for the period in question, by Eurostat (Statistical Office of the European Union) in the Member State in which the applicant is established;










—


increased by default interest, to be calculated as from the date of delivery of the present judgment and until full payment, at the rate set by the European Central Bank (ECB) for its principal refinancing operations, increased by two percentage points;


















—


in the alternative,






—


rule that the Commission is liable to pay to the applicant the principal sum of EUR 3 238 000, of which:






—


EUR 2 848 000 correspond to refunds not received in connection with sales carried out between 19 July and 31 December 2013;










—


EUR 390 000 correspond to refunds relating to the loss of profit resulting from the failure to achieve 3 550 additional tonnes of sales to countries in the Middle East over the course of the same period;














—


order the Commission to pay the principal sum of EUR 3 238 000,






—


reassessed by applying compensatory interest, starting from the date of adoption of annulled Regulation (EU) No 689/2013 and continuing up to the date of delivery of the judgment in the present proceedings, on the basis of the annual rate of inflation determined, for the period in question, by Eurostat (Statistical Office of the European Union) in the Member State in which the applicant is established;










—


increased by default interest, to be calculated as from the date of delivery of the present judgment and until full payment, at the rate set by the European Central Bank (ECB) for its principal refinancing operations, increased by two percentage points;














—


rule that the principal sums and interest ordered to be paid by the Commission in the present case may be reduced by the amount which it may be ordered to pay in the context of Case T-437/18;










—


order the Commission to pay damages in respect of the non-material harm stemming from its double error in an amount calculated ex aequo et bono at EUR 20 000;














—


in the further alternative,






—


rule that the Council and the Commission are liable to pay to the applicant the principal sum of EUR 3 238 000 — the Court having responsibility for determining the share to be paid by each party — of which:






—


EUR 2 848 000 correspond to refunds not received in connection with sales carried out between 19 July and 31 December 2013;










—


EUR 390 000 correspond to refunds relating to the loss of profit resulting from the failure to achieve 3 550 additional tonnes of sales to countries in the Middle East over the course of the same period;














—


rule that the Council and the Commission are liable to pay to the applicant the principal sum of EUR 3 238 000000 — the share to be paid by each party to be determined by the Court —






—


the fixed principal sum attributed to the Council, on the one hand, and to the Commission, on the other hand, is to be reassessed by applying compensatory interest, starting from the date of adoption of annulled Regulation (EU) No 689/2013 and continuing up to the date of delivery of the judgment in the present proceedings, on the basis of the annual rate of inflation determined, for the period in question, by Eurostat (Statistical Office of the European Union) in the Member State in which the applicant is established;










—


increased by default interest, to be calculated as from the date of delivery of the present judgment and until full payment, at the rate set by the European Central Bank (ECB) for its principal refinancing operations, increased by two percentage points;


















—


order the Council and the Commission to pay the costs of the present action, the share to be paid by each party to be determined by the Court.





Pleas in law and main arguments

In support of the action, the applicant relies on six pleas in law.






1.


First plea in law, alleging abuse of procedure or breach of procedure, in that the applicant claims that the procedure for the replacement of an annulled act was not complied with in the present case, since the Commission was the author of the annulled act, namely Regulation (EU) No 689/2013 of 18 July 2013 fixing the export refunds on poultrymeat (OJ 2013 L 196, p. 13), whereas it was the Council which adopted the new regulation on 18 September 2018 on the basis of different legal provisions.










2.


Second plea in law, alleging infringement of the rule of equivalence of form, in that, first, the new regulation was not adopted by the Commission but by the Council, and, second, the Commission should have been assisted by the Management Committee for the Common Organisation of Agricultural Markets.










3.


Third plea in law, alleging lack of a legal basis for the contested regulation, in that Article 43(3) TFEU, which was relied on as the sole possible legal basis for the adoption of the contested regulation, does not allow the Council to adopt such a regulation. Therefore, there is no legal basis which allows the Council to fix export refunds for poultrymeat.










4.


Fourth plea in law, alleging abuse of procedure, in that, in order to comply with the judgment of the Court of Justice of 20 September 2017, Tilly-Sabco v Commission, (C-183/16 P, EU:C:2017:704), the Commission should have adopted the act replacing the annulled regulation itself and should not have asked the Council to adopt an act ‘in its place’.










5.


Fifth plea in law, alleging an inadequate or erroneous statement of reasons, both as regards form, in that the contested regulation does not explain why it was necessary to ask the Council to adopt that act, or why and how Article 43(3) TFEU was the sole legal basis allowing for its adoption, and as regards substance, in that the Council, like the Commission previously, did not rely on any economic analysis in order to fix the refund rate.










6.


Sixth plea in law, alleging that the contested regulation is contradictory, in that the Council adopted without thought or analysis the identical regulation based on an erroneous and invalid legal basis and accordingly did not take into account the aforementioned judgment of the Court of Justice.




According to the applicant, the annulment of the new Regulation (EU) 2018/1277 gives rise, principally, to an entitlement to request the Council to pay damages for the harm suffered by the applicant as a result of its adoption. In the alternative, the applicant brings an action for damages against the Commission, which is behind the adoption of that new regulation which must be annulled. Finally, in the further alternative, the applicant submits that the Court should rule that the Council and the Commission are jointly liable, given that both entities erred in discrete ways.