T & L Sugars Ltd and Sidul Açúcares, Unipessoal Lda v European Commission.
Date: 2015-04-28
26. If there is no means of redress, allowing the implementing measures to be challenged, it should, it is submitted, be borne in mind that in the judgment in Inuit Tapiriit Kanatami and Others  v Parliament and Council  (C‑583/11 P, EU:C:2013:625, paragraphs 97 and 103), the Court held that ‘neither the FEU Treaty nor Article 19 TEU intended to create new remedies before the national courts to ensure the observance of EU law other than those already laid down by national law’, and that Article 47 is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union.
29. The concept of ‘regulatory act which … does not entail implementing measures’ within the meaning of the final limb of the fourth paragraph of Article 263 TFEU must be interpreted in the light of the objective of that provision, which is, as is apparent from its drafting history, to ensure that individuals do not have to break the law in order to have access to a court. Where a regulatory act directly affects the legal situation of a natural or legal person without requiring implementing measures, that person could be denied effective judicial protection if he did not have a direct legal remedy before the European Union judicature for the purpose of challenging the legality of the regulatory act. In the absence of implementing measures, natural or legal persons, although directly concerned by the act in question, would be able to obtain a judicial review of that act only after having infringed its provisions, by pleading that those provisions are unlawful in proceedings initiated against them before the national courts (judgment in Telefónica  v Commission , C‑274/12 P, EU:C:2013:852, paragraph 27).
30. However, where a regulatory act entails implementing measures, judicial review of compliance with the European Union legal order is ensured irrespective of whether those measures were adopted by the European Union or the Member States. Natural or legal persons who are unable, because of the conditions governing admissibility laid down in the fourth paragraph of Article 263 TFEU, to challenge a regulatory act of the European Union directly before the European Union judicature are protected against the application to them of such an act by the ability to challenge the implementing measures which the act entails (judgment in Telefónica  v Commission , C‑274/12 P, EU:C:2013:852, paragraph 28).
31. Where responsibility for the implementation of such acts lies with the institutions, bodies, offices or agencies of the European Union, natural or legal persons are entitled to bring a direct action before the European Union judicature against the implementing acts under the conditions stated in the fourth paragraph of Article 263 TFEU, and to plead in support of that action, pursuant to Article 277 TFEU, the illegality of the basic act at issue. Where that implementation is a matter for the Member States, those persons may plead the invalidity of the basic act at issue before the national courts and tribunals and cause the latter to request a preliminary ruling from the Court of Justice, pursuant to Article 267 TFEU (judgments in Inuit Tapiriit Kanatami and Others  v Parliament and Council , C‑583/11 P, EU:C:2013:625, paragraph 93, and Telefónica  v Commission , C‑274/12 P, EU:C:2013:852, paragraph 29).
32. As the Court has already held, whether a regulatory act entails implementing measures should be assessed by reference to the position of the person pleading the right to bring proceedings under the final limb of the fourth paragraph of Article 263 TFEU. It is therefore irrelevant whether the act in question entails implementing measures with regard to other persons (judgment in Telefónica  v Commission , C‑274/12 P, EU:C:2013:852, paragraph 30, and Stichting Woonpunt and Others  v Commission , C‑132/12 P, EU:C:2014:100, paragraph 50).
37. It appears from the foregoing considerations that, as regards Regulation No 222/2011 and Implementing Regulation No 293/2011, since the appellants do not have the status of producers of sugar and their legal situation is not directly affected by those regulations, those regulations are not of direct concern to them within the meaning of the final limb of the fourth paragraph of Article 263 TFEU (see judgments in Glencore Grain v Commission , C-404/96 P, EU:C:1998:196, paragraph 41; Front national v Parliament , C-486/01 P, EU:C:2004:394, paragraph 34; Commission  v Ente per le Ville Vesuviane and Ente per le Ville Vesuviane  v Commission , C-445/07 P and C-455/07 P, EU:C:2009:529, paragraph 45; and Stichting Woonpunt and Others v Commission , C-132/12 P, EU:C:2014:100, paragraph 68).
40. However, Implementing Regulations No 302/2011 and No 393/2011 produce their legal effects vis-à-vis the appellants only through the intermediary of acts taken by the national authorities following the submission of applications for certificates on the basis of Implementing Regulation No 302/2011. The decisions of the national authorities granting such certificates, which apply the coefficients fixed by Implementing Regulation No 393/2011 to the operators concerned, and the decisions refusing such certificates in full or in part therefore constitute implementing measures within the meaning of the final limb of the fourth paragraph of Article 263 TFEU.
41. That conclusion is not called into question by the allegedly mechanical nature of the measures taken at national level.
42. As the General Court rightly held in paragraph 53 of the judgment under appeal, that question is irrelevant in ascertaining whether those regulations entail implementing measures within the meaning of the final limb of the fourth paragraph of Article 263 TFEU.
43. As regards the argument which the appellants derive from Article 47 of the Charter, it appears from settled case-law that that article is not intended to change the system of judicial review laid down by the Treaties, and particularly the rules relating to the admissibility of direct actions brought before the Courts of the European Union, as is apparent also from the Explanation on Article 47 of the Charter, which must, in accordance with the third subparagraph of Article 6(1) TEU and Article 52(7) of the Charter, be taken into consideration for the interpretation of the Charter (see judgments in Sky Österreich , C‑283/11, EU:C:2013:28, paragraph 42; Alemo-Herron and Others , C‑426/11, EU:C:2013:521, paragraph 32; and Inuit Tapiriit Kanatami and Others  v Parliament and Council , C‑583/11 P, EU:C:2013:625, paragraph 97).
44. Accordingly, the conditions of admissibility laid down in the fourth paragraph of Article 263 TFEU must be interpreted in the light of the fundamental right to effective judicial protection, but such an interpretation cannot have the effect of setting aside those conditions, which are expressly laid down in that Treaty (see, to that effect, Inuit Tapiriit Kanatami and Others  v Parliament and Council , C‑583/11 P, EU:C:2013:625, paragraph 98 and the case-law cited).
45. However, judicial review of compliance with the European Union legal order is ensured, as can be seen from Article 19(1) TEU, not only by the Court of Justice but also by the courts and tribunals of the Member States. The FEU Treaty has, by Articles 263 TFEU and 277 TFEU, on the one hand, and Article 267 TFEU, on the other, established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of the institutions, and has entrusted such review to the European Union judicature (judgments in Inuit Tapiriit Kanatami and Others  v Parliament and Council , C‑583/11 P, EU:C:2013:625, paragraphs 90 and 92, and Telefónica  v Commission , C‑274/12 P, EU:C:2013:852, paragraph 57).
46. In that connection, it must be emphasised that, in proceedings before the national courts, individual parties have the right to challenge before the courts the legality of any decision or other national measure relative to the application to them of a European Union act of general application, by pleading the invalidity of such an act (see, to that effect, judgments in E and F , C‑550/09, EU:C:2010:382, paragraph 45, and Inuit Tapiriit Kanatami and Others  v Parliament and Council , C‑583/11 P, EU:C:2013:625, paragraph 94).
47. It follows that references on validity constitute, like actions for annulment, means for reviewing the legality of European Union acts (judgments in Zuckerfabrik Süderdithmarschen and Zuckerfabrik Soest , C‑143/88 and C‑92/89, EU:C:1991:65, paragraph 18; ABNA and Others , C‑453/03, C‑11/04, C‑12/04 and C‑194/04, EU:C:2005:741, paragraph 103; and Inuit Tapiriit Kanatami and Others  v Parliament and Council , C‑583/11 P, EU:C:2013:625, paragraph 95).
48. In that regard, it must be borne in mind that where a national court or tribunal considers that one or more arguments for invalidity of a European Union act, put forward by the parties or, as the case may be, raised by it of its own motion, are well founded, it is incumbent upon it to stay proceedings and to make a reference to the Court for a preliminary ruling on the act’s validity, the Court alone having jurisdiction to declare a European Union act invalid (judgments in IATA and ELFAA , C‑344/04, EU:C:2006:10, paragraphs 27 and 30 and the case law cited, and Inuit Tapiriit Kanatami and Others  v Parliament and Council , C‑583/11 P, EU:C:2013:625, paragraph 96).
49. As regards persons who do not fulfil the requirements of the fourth paragraph of Article 263 TFEU for bringing an action before the Courts of the European Union, it is for the Member States to establish a system of legal remedies and procedures which ensure respect for the fundamental right to effective judicial protection ( Inuit Tapiriit Kanatami and Others  v Parliament and Council , C‑583/11 P, EU:C:2013:625, paragraph 100 and the case-law cited).
50. That obligation on the Member States was reaffirmed by the second subparagraph of Article 19(1) TEU, which states that Member States ‘shall provide remedies sufficient to ensure effective judicial protection in the fields covered by EU law’ (see judgment in Inuit Tapiriit Kanatami and Others  v Parliament and Council , C‑583/11 P, EU:C:2013:625, paragraph 101). That obligation also follows from Article 47 of the Charter as regards measures taken by the Member States to implement Union law within the meaning of Article 51(1) of the Charter.
51. In the light of all of the foregoing, the first ground of appeal must be rejected.
The second ground of appeal
Arguments of the parties
63. As regards the second of those conditions, that is to say, being individually concerned by the act in question, it is settled case-law that persons other than those to whom a decision is addressed may claim to be individually concerned only if that decision affects them by reason of certain attributes which are peculiar to them or by reason of circumstances in which they are differentiated from all other persons and by virtue of these factors distinguishes them individually just as in the case of the person addressed (judgments in Plaumann  v Commission , 25/62, EU:C:1963:17, 223; Inuit Tapiriit Kanatami and Others  v Parliament and Council , C‑583/11 P, EU:C:2013:625, paragraph 72; and Telefónica  v Commission , C‑274/12 P, EU:C:2013:852, point 46).
64. It is also clear from settled case-law that the possibility of determining more or less precisely the number, or even the identity, of the persons to whom a measure applies by no means implies that it must be regarded as being of individual concern to them as long as that measure is applied by virtue of an objective legal or factual situation defined by it (see, to this effect, judgments in Antillean Rice Mills  v Council C‑451/98, EU:C:2001:622, paragraph 52, and Telefónica  v Commission , C‑274/12 P, EU:C:2013:852, paragraph 47).
66. Article 1(1) of Implementing Regulation No 393/2011 concerns all the applicants for import licences who lodged their application with the European Union between 1 and 7 April 2011. As the General Court rightly observed in paragraph 85 of the judgment under appeal, Article 7(2) of Regulation No 1301/2006 provides for an allocation coefficient calculated according to the available quantity and the requested quantity and does not take into account the content of individual applications or the specific situation of applicants. Thus, Implementing Regulation No 393/2011 was adopted, not taking account of particular qualities of the appellants but exclusively taking account of the fact that the quantities covered by the applications for import licences lodged with the competent authorities from 1 to 7 April 2011 exceed the available quantity, as is apparent from recital 1 in the preamble to that regulation. Neither the application for a licence, nor, more generally, the individual situation of T & L Sugars and Sidul Açúcares, was, therefore, taken into account when the regulation was adopted.