Case T-522/23: Action brought on 23 August 2023 — Vossko v Council
Date: 2023-08-23
Institutions: General Court
Subjects: Brazil, GATT, United Kingdom, agreement (EU), poultrymeat, ratification of an agreement, revision of an agreement, tariff preference, tariff quota, withdrawal from the EU








C_202300070EN.000101.fmx.xml












Official Journal of the European Union


EN
Series C













C/2023/70


9.10.2023





Action brought on 23 August 2023 — Vossko v Council
(Case T-522/23)
(C/2023/70)
Language of the case: German

Parties


Applicant: Vossko GmbH & Co. KG (Ostbevern, Germany) (represented by: L. Harings, M. Jürgens and F. Jacobs, lawyers)

Defendant: Council of the European Union

Form of order sought

The applicant claims that the Court should:






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annul Council Decision (EU) 2023/1056 of 25 May 2023 on the conclusion, on behalf of the Union, of the Agreement between the European Union and the Federative Republic of Brazil pursuant to Article XXVIII of the General Agreement on Tariffs and Trade (GATT) 1994 relating to the modification of concessions on all the tariff rate quotas included in the EU Schedule CLXXV as a consequence of the United Kingdom’s withdrawal from the European Union;










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order the defendant to pay the costs of the proceedings.





Pleas in law and main arguments

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






1.


First plea in law: Decision (EU) 2023/1056 has been adopted in infringement of essential procedural requirements.






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The right to be involved and consulted has been infringed. The Commission has failed adequately to fulfil its duty to involve and consult under Article 2(b) of Regulation (EU) 2019/216. The Council, which availed of the Commission to negotiate the agreement at issue, must assume responsibility for that infringement pursuant to the second subparagraph of Article 207(3) TFEU. The Commission has failed adequately to consider the applicant’s arguments or to state to what extent the applicant’s observations have been taken into account in the decision-making process.










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The obligation to state reasons laid down in the second paragraph of Article 296 TFEU has been infringed. It is not apparent from Decision (EU) 2023/1056 how the specific volumes of tariff rate quotas have been determined. Rather, the recitals merely make a general reference to the negotiations under Article XXVIII of the GATT.














2.


Second plea in law: Decision (EU) 2023/1056 infringes the Treaties of the European Union.






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The decision infringes the applicant’s freedom to conduct a business under Article 16 of the Charter of Fundamental Rights of the European Union. (1) The reduction of the tariff rate quota for cooked poultry meat is a de facto restriction on imports. That action is not justified. The new quota, which is liable to threaten the applicant’s existence, has affected the very essence of the applicant’s business activities.










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In addition, the decision infringes the principle of proportionality laid down in Article 52(1) of the Charter, as it is not clearly defined, appropriate, necessary or proportionate. The decision is not necessary, as there are less restrictive, but equally effective means of achieving the objective pursued.










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The decision infringes the applicant’s right to property under Article 17 of the Charter. The reduction of the tariff rate quota requires the applicant to make an unjustifiable exceptional sacrifice and thus constitutes a de facto expropriation. The decision is in direct contradiction with the principle of equality, as it de facto affects primarily the largest importers of cooked poultry meat from Brazil and therefore the applicant in particular. The related adverse effects on the applicant went far beyond what is usually to be expected in the event of legal or political changes. The action in question cannot be justified, as there is no compensation scheme, which is required for cases of expropriation. Furthermore, the Council has not demonstrated that there is an overriding public interest; moreover, no such overriding public interest is apparent.










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The decision infringes the principles of EU law relating to the protection of legitimate expectations and legal certainty. The decision leads to an unforeseeable and significant modification of tariff rate quotas and therefore does not satisfy the requirements laid down by the Court of Justice as regards the observance of the principles of the protection of legitimate expectations and of legal certainty. The decision does not provide for any transitional arrangements or compensation schemes. Furthermore, the decision has unlawful genuine retroactive effect, as it has legal effects on situations that had arisen before it was adopted. The applicant already had, before the contested decision came into force, imported a greater number of tonnes of cooked poultry meat from Brazil than that which it will be able to import in the future on account of the reduction.










(1)  
            OJ 2012 C 326, p. 391.


ELI: http://data.europa.eu/eli/C/2023/70/oj
ISSN 1977-091X (electronic edition)