T & L Sugars and Sidul Acucares v Commission (Judgment) [2016] EUECJ T-103/12 (29 November 2016)

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(Non-contractual liability — Agriculture — Sugar — Exceptional measures — Availability of supply on the EU market — 2011/12 marketing year — Rule of law intended to confer rights on individuals — Sufficiently serious infringement Regulation (EC) No 1234/2007 — Principle of non-discrimination — Proportionality — Legal certainty — Legitimate expectations — Duty of diligence and the principle of sound administration)

Sidul Açúcares, Unipessoal Lda, established in Santa Iria de Azóia (Portugal),

represented initially by D. Waelbroeck, lawyer, and D. Slater, Solicitor, and subsequently by D. Waelbroeck,

DAI — Sociedade de Desenvolvimento Agro-Industrial, SA, established in Coruche (Portugal), represented by M. Mendes Pereira, lawyer,

RAR — Refinarias de Açúcar Reunidas, SA, established in Porto (Portugal), represented by M. Mendes Pereira,

SFIR Società Fondiaria Industriale Romagnola SpA, established in Cesena (Italy),

European Commission, represented initially by P. Rossi and N. Donnelly, and subsequently by P. Rossi and P. Ondrůšek, acting as Agents,

Council of the European Union, represented by E. Sitbon and A. Westerhof Löfflerová, acting as Agents,

Comité européen des fabricants de sucre (CEFS), established in Brussels (Belgium), represented by C. Pitschas, lawyer,

(i) APPLICATION pursuant to Article 263 TFEU for annulment of Commission Implementing Regulation (EU) No 1239/2011 of 30 November 2011 opening a standing invitation to tender for the 2011/12 marketing year for imports of sugar of CN code 1701 at a reduced customs duty (OJ 2011 L 318, p. 4), of Commission Implementing Regulation (EU) No 1240/2011 of 30 November 2011 laying down exceptional measures as regards the release of out-of-quota sugar and isoglucose on the Union market at reduced surplus levy during marketing year 2011/12 (OJ 2011 L 318, p. 9), of Commission Implementing Regulation (EU) No 1281/2011 of 8 December 2011 on the minimum customs duty to be fixed in response to the first partial invitation to tender within the tendering procedure opened by Implementing Regulation No 1239/2011 (OJ 2011 L 327, p. 60), of Commission Implementing Regulation (EU) No 1308/2011 of 14 December 2011 fixing allocation coefficient, rejecting further applications and closing the period for submitting applications for available quantities of out-of-quota sugar to be sold on the Union market at reduced surplus levy during marketing year 2011/12 (OJ 2011 L 332, p. 8), of Commission Implementing Regulation (EU) No 1316/2011 of 15 December 2011 on the minimum customs duty to be fixed in response to the second partial invitation to tender within the tendering procedure opened by Implementing Regulation No 1239/2011 (OJ 2011 L 334, p. 16), of Commission Implementing Regulation (EU) No 1384/2011 of 22 December 2011 on the minimum customs duty to be fixed in response to the third partial invitation to tender within the tendering procedure opened by Implementing Regulation No 1239/2011 (OJ 2011 L 343, p. 33), of Commission Implementing Regulation (EU) No 27/2012 of 12 January 2012 on the minimum customs duty for sugar to be fixed in response to the fourth partial invitation to tender within the tendering procedure opened by Implementing Regulation No 1239/2011 (OJ 2012 L 9, p. 12), and of Commission Implementing Regulation (EU) No 57/2012 of 23 January 2012, suspending the tendering procedure opened by Implementing Regulation No 1239/2011 (OJ 2012 L 19, p. 12), and (ii) action pursuant to Article 268 TFEU for damages for the loss which the applicants allegedly suffered as a result of the adoption of those measures and of the Commission’s refusal to take the necessary measures to re-establish availability of supply of raw cane sugar,

composed of S. Papasavvas, President, E. Bieliūnas (Rapporteur) and I.S. Forrester, Judges,

having regard to the written part of the procedure and further to the hearing on 7 April 2016,

1 The supply of sugar on the European Union market includes sugar produced, on the one hand, by the processing of sugar beet grown within the European Union and, on the other, by the refining of raw cane sugar imported from non-member countries, the final product being chemically identical in each case. Raw cane sugar from the European Union, namely in the French Overseas Departments and in the Azores, represents less than 2% of EU sugar production.

2 The applicants, T&L Sugars Ltd and Sidul Açúcares, Unipessoal Lda, are cane-sugar refiners established in the European Union. They are full-time refiners for the purposes of Council Regulation (EC) No 318/2006 of 20 February 2006 on the common organisation of the markets in the sugar sector (OJ 2006 L 58, p. 1). Under Article 2(13) of that regulation, full-time refiners are production units ‘of which the sole activity consists of refining imported raw cane sugar’ or ‘which refined in the marketing year 2004/05 a quantity of at least 15 000 tonnes of imported raw cane sugar’.

3 Regulation No 318/2006 entered into force on 1 July 2006, and, according to recital 2, substantially reformed the common organisation of the market in the sugar sector. That regulation was aimed, in particular, at making new reductions in production quotas due to developments within the Community and internationally. Regulation (EC) No 320/2006 of 20 February 2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community and amending Regulation (EC) No 1290/2005 on the financing of the common agricultural policy (OJ 2006 L 58, p. 42) created a temporary restructuring fund intended to finance the restructuring measures for the Community sugar industry. As is stated in recital 5, Regulation No 320/2006 introduced an important economic incentive, in the form of a restructuring aid, for sugar undertakings with the lowest productivity to give up their quota production for the marketing years 2006/07, 2007/08, 2008/09 and 2009/10.

4 At the same time, Regulation No 318/2006 ensured that the traditional supply needs of full-time refiners were satisfied for the marketing years 2006/07, 2007/08 and 2008/09. Article 29 of that regulation also provided that, at the end of the 2008/09 marketing year, that is to say, from 1 October 2009, full-time refineries would lose their monopoly on imports of raw sugar for refining and would only have priority access to import licences for the first three months of each marketing year. Furthermore, Article 8 of Regulation No 320/2006 made provision for the grant of transitional aid to full-time refiners, such as the applicants, in order to enable them to adapt to the restructuring of the sugar industry in the Community.

5 On 22 October 2007, the Council adopted Regulation (EC) No 1234/2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (Single CMO Regulation) (OJ 2007 L 299, p. 1). That regulation was applicable as from 1 January 2008.

6 Between 2005 and 2008, the Community’s scheme of tariff preferences for imports of sugar from certain third countries was amended, and a new imports system started to apply on 1 October 2009, that is to say, at the beginning of the 2009/10 marketing year. First, import duties on raw or already refined sugar from Least Developed Countries (LDCs) were completely suspended without any restriction based on volumes imported. Secondly, import duties on raw or already refined sugar from African, Caribbean and Pacific (ACP) States, not being LDCs, were eliminated. Finally, the ACP States were no longer required to export their produce to the European Union.

7 Furthermore, tariff concessions were granted by the Community to certain third countries pursuant to commitments made under the General Agreement on Tariffs and Trade (GATT). Those tariff concessions are set out in the so-called ‘Schedule CXL — European Communities’ sent to the World Trade Organisation. In that regard in particular, Commission Regulation (EC) No 891/2009 of 25 September 2009 opening and providing for the administration of certain Community tariff quotas in the sugar sector (OJ 2009 L 254, p. 82) provided that, from 1 October 2009, it would be possible to import into the territory of the European Union a quantity of more than 650 000 tonnes of raw sugar cane at a reduced customs duty of EUR 98 per tonne.

8 From March 2009, the applicants approached the European Commission services to inform them that there was a risk of a supply shortage on the EU market and to request that the Commission suspend the import duties on raw sugar cane for refining.

9 On 26 November 2010, the Commission adopted Regulation (EU) No 1100/2010 derogating from Regulation No 891/2009, as regards import duties for the CXL concessions sugar with order numbers 09.4317, 09.4318, 09.4319 and 09.4320, during the 2010/11 marketing year (OJ 2010 L 312, p. 14). That regulation, which was based, inter alia, on the finding that there was a risk of disruption of the availability of supply on the EU sugar market, suspended, from 1 December 2010 to 31 August 2011, the in-quota rate fixed at EUR 98 per tonne for imports of sugar with order numbers 09.4317 (Australia), 09.4318 (Brazil), 09.4319 (Cuba) and 09.4320 (any third country).

10 Between 3 March and 19 April 2011, the Commission adopted certain measures designed to increase the supply of sugar on the EU market. Those measures were adopted in the following acts:

– Commission Regulation (EU) No 222/2011 of 3 March 2011 laying down exceptional measures as regards the release of out-of-quota sugar and isoglucose on the Union market at reduced surplus levy during marketing year 2010/11 (OJ 2011 L 60, p. 6);

– Commission Implementing Regulation (EU) No 293/2011 of 23 March 2011 fixing allocation coefficient, rejecting further applications and closing the period for submitting applications for available quantities of out-of-quota sugar to be sold on the Union market at reduced surplus levy (OJ 2011 L 79, p. 8);

– Commission Implementing Regulation (EU) No 302/2011 of 28 March 2011 opening an exceptional import tariff quota for certain quantities of sugar in the 2010/11 marketing year (OJ 2011 L 81, p. 8);

– Commission Implementing Regulation (EU) No 393/2011 of 19 April 2011 fixing the allocation coefficient for the issuing of import licences applied for from 1 to 7 April 2011 for sugar products under certain tariff quotas and suspending submission of applications for such licences (OJ 2011 L 104, p. 39).

11 By application lodged at the Court Registry on 30 May 2011, the applicants brought an action against the measures listed in paragraph 10 above and claimed damages for the loss which they had allegedly suffered. That action was registered as Case T‑279/11.

12 Following the measures referred to in paragraph 10 above, the Commission adopted Implementing Regulation (EU) No 589/2011 of 20 June 2011 amending Implementing Regulation (EU) No 302/2011 opening an exceptional import tariff quota for certain quantities of sugar in the 2010/11 marketing year (OJ 2011 L 161, p. 7), Implementing Regulation (EU) No 618/2011 of 24 June 2011 withdrawing the suspension of submission of applications for import licences for sugar products under tariff quota 09.4380 (OJ 2011 L 166, p. 8), and Implementing Regulation (EU) No 698/2011 of 19 July 2011 fixing the allocation coefficient for the issuing of import licences applied for from 1 to 7 July 2011 for sugar products under certain tariff quotas and suspending the submission of applications for such licences (OJ 2011 L 189, p. 12).

13 Furthermore, the Commission adopted Implementing Regulation (EU) No 634/2011 of 29 June 2011 opening a standing invitation to tender for the 2010/11 marketing year for imports of sugar of CN code 1701 at a reduced customs duty (OJ 2011 L 170, p. 21). Pursuant to that regulation, the Commission adopted the following regulations:

– Implementing Regulation (EU) No 682/2011 of 14 July 2011 on the minimum customs duty to be fixed in response to the first partial invitation to tender within the tendering procedure opened by Implementing Regulation (EU) No 634/2011 (OJ 2011 L 185, p. 74);

– Implementing Regulation (EU) No 747/2011 of 28 July 2011 on the minimum customs duty to be fixed in response to the second partial invitation to tender within the tendering procedure opened by Implementing Regulation No 634/2011 (OJ 2011 L 197, p. 10);

– Implementing Regulation (EU) No 862/2011 of 25 August 2011 on the minimum customs duty to be fixed in response to the third partial invitation to tender within the tendering procedure opened by Implementing Regulation No 634/2011 (OJ 2011 L 220, p. 20);

– Implementing Regulation (EU) No 924/2011 of 15 September 2011 on the minimum customs duty to be fixed in response to the fourth partial invitation to tender within the tendering procedure opened by Implementing Regulation (EU) No 634/2011 (OJ 2011 L 240, p. 6);

– Implementing Regulation (EU) No 973/2011 of 29 September 2011 on the minimum customs duty to be fixed in response to the fifth partial invitation to tender within the tendering procedure opened by Implementing Regulation (EU) No 634/2011 (OJ 2011 L 254, p. 16).

14 The applicants did not bring any action against the measures referred to in paragraphs 12 and 13 above.

15 Between 30 November 2011 and 23 January 2012, the Commission adopted measures relating to the supply of sugar on the EU market for the 2011/12 marketing year.

16 Those measures took the form of the following acts (together the ‘contested measures’):

– Commission Implementing Regulation (EU) No 1239/2011 of 30 November 2011 opening a standing invitation to tender for the 2011/12 marketing year for imports of sugar of CN code 1701 at a reduced customs duty (OJ 2011 L 318, p. 4);

– Commission Implementing Regulation (EU) No 1240/2011 of 30 November 2011 laying down exceptional measures as regards the release of out-of-quota sugar and isoglucose on the Union market at reduced surplus levy during marketing year 2011/12 (OJ 2011 L 318, p. 9);

– Commission Implementing Regulation (EU) No 1281/2011 of 8 December 2011 on the minimum customs duty to be fixed in response to the first partial invitation to tender within the tendering procedure opened by Implementing Regulation No 1239/2011 (OJ 2011 L 327, p. 60);

– Commission Implementing Regulation (EU) No 1308/2011 of 14 December 2011 fixing allocation coefficient, rejecting further applications and closing the period for submitting applications for available quantities of out-of-quota sugar to be sold on the Union market at reduced surplus levy during marketing year 2011/12 (OJ 2011 L 332, p. 8);

– Commission Implementing Regulation (EU) No 1316/2011 of 15 December 2011 on the minimum customs duty to be fixed in response to the second partial invitation to tender within the tendering procedure opened by Implementing Regulation No 1239/2011 (OJ 2011 L 334, p. 16);

– Commission Implementing Regulation (EU) No 1384/2011 of 22 December 2011 on the minimum customs duty to be fixed in response to the third partial invitation to tender within the tendering procedure opened by Implementing Regulation No 1239/2011 (OJ 2011 L 343, p. 33);

– Commission Implementing Regulation (EU) No 27/2012 of 12 January 2012 on the minimum customs duty for sugar to be fixed in response to the fourth partial invitation to tender within the tendering procedure opened by Implementing Regulation No 1239/2011 (OJ 2012 L 9, p. 12);

– Commission Implementing Regulation (EU) No 57/2012 of 23 January 2012, suspending the tendering procedure opened by Implementing Regulation No 1239/2011 (OJ 2012 L 19, p. 12).

17 The purpose of Implementing Regulation No 1240/2011 is to fix, at EUR 85 per tonne, the amount of the surplus levy for the marketing year 2011/12 for a maximum quantity of 400 000 tonnes of sugar and 21 000 tonnes of isoglucose, produced in excess of the quota fixed in Annex VI to Regulation No 1234/2007. Furthermore, pursuant to Article 5 of Implementing Regulation No 1240/2011, Article 1 of Implementing Regulation No 1308/2011 fixes at 21.680216% the allocation coefficient which Member States are to apply to the quantities covered by each certificate application submitted from 1 to 7 December 2011 and notified to the Commission.

18 The purpose of Implementing Regulation No 1239/2011 is to open a standing invitation to tender for the 2011/12 marketing year for imports of sugar of CN code 1701 at a reduced customs duty. Pursuant to Article 6 of that regulation, the Commission adopted Implementing Regulations No 1281/2011, No 1316/2011, No 1384/2011 and No 27/2012. Each of those implementing regulations concerns tenders introduced in a specific period and fixes a minimal level of customs duty on the basis of tenders received in response to each partial invitation to tender. Implementing Regulation No 57/2012 suspended the submission of tenders for partial invitations to tender ending on 25 January 2012, 1 February 2012 and 15 February 2012.

19 By judgment of 6 June 2013, T & L Sugars and Sidul Açúcares v Commission (T‑279/11, EU:T:2013:299), the Court partially upheld the plea of inadmissibility put forward by the Commission. On the one hand, it dismissed as inadmissible the claim for annulment of the acts mentioned in paragraph 10 above, and on the other it dismissed the plea of inadmissibility in so far as it related to the claim for compensation for damage suffered. Finally, it reserved costs, after deciding that the action seeking compensation for damage suffered remained.

20 By application lodged on 9 August 2013, the applicants brought an appeal against the judgment of 6 June 2013, T & L Sugars and Sidul Açúcares v Commission (T‑279/11, EU:T:2013:299).

21 By judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission (C‑456/13 P, EU:C:2015:284), the Court of Justice dismissed that appeal.

22 By application lodged at the Court Registry on 24 February 2012, the applicants brought the present action.

23 By orders of 26 September 2012, the President of the Fifth Chamber of the General Court granted, first, the applications for leave to intervene in the proceedings in support of the form of order sought by the Commission made by the Council of the European Union and by the Comité européen des fabricants de sucre (CEFS) and, secondly, the applications for leave to intervene in the proceedings in support of the form of order sought by the applicants made by DAI — Sociedade de Desenvolvimento Agro-Industrial SA (‘DAI’), by RAR — Refinarias de Açùcar Reunidas SA (‘RAR’), by Lemarco SA, Lemarco Cristal Srl and Zaharul Liesti SA, and by SFIR — Società Fondiaria Industriale Romagnola SpA and SFIR Raffineria di Brindisi SpA (together, ‘SFIR’). The communication of the procedural documents to the interveners was limited to the non-confidential versions, the applicants having requested confidential treatment with regard to the interveners.

24 Lemarco SA, Lemarco Cristal Srl and Zaharul Liesti SA did not lodge their statements in intervention within the prescribed period.

25 Owing to the partial renewal of the Court, the present case was assigned to a new Judge-Rapporteur sitting in the Third Chamber.

26 By order of 11 November 2013, at the request of the applicants, the President of the Third Chamber suspended the proceedings in the present case pending final judgment in Case C‑456/13 P, T & L Sugars and Sidul Açúcares v Commission.

27 The proceedings before the General Court were resumed on 28 April 2015 and, by way of a measure of organisation of the procedure, the main parties were asked what inferences they drew from the judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission (C‑456/13 P, EU:C:2015:284). The applicants and the Commission replied by letters lodged at the Court Registry on 22 June 2015.

28 At the hearing on 7 April 2016, which DAI, Lemarco SA, Lemarco Cristal Srl, Zaharul Liesti SA and the Council did not attend, the parties presented oral arguments and replied to the General Court’s oral questions.

– in the alternative, declare unlawful the provisions of Articles 186(a) and 187 of Regulation No 1234/2007 and annul the contested measures inasmuch as they are directly or indirectly based on those provisions;

– order the European Union, represented by the Commission, to make good the damage which they suffered as a result of the Commission’s breach of its legal obligations and set the amount of the compensation for the period from 1 April 2011 to 29 January 2012 at the sum of EUR 87 399 257, plus any ongoing losses which they suffered after that date, or set any other amount reflecting the damage suffered or to be suffered by the applicants as further established by them in the course of the proceedings;

– order that interest, at the rate set at the time by the European Central Bank for its main refinancing operations, plus two percentage points, or any other appropriate rate, be paid on the amount payable as from the date of the Court’s judgment until actual payment;

30 Moreover, it is apparent from paragraphs 215 to 220 of the application that the applicants also, but ‘only as a precaution’, raise a plea of illegality against Implementing Regulations No 1239/2011 and No 1240/2011, in case the action brought against those acts is not considered admissible.

31 DAI, RAR and SFIR support the applicants’ first two heads of claim and ask the Court to order the Commission to pay the costs, including the costs which they have incurred.

– dismiss the appeal as inadmissible or, in the alternative, dismiss the appeal as unfounded;

– dismiss the action as inadmissible or, in the alternative, dismiss the action as unfounded inasmuch as it is directed against Implementing Regulations No 1240/2011 and No 1308/2011;

34 At the hearing, the applicants informed the Court that, as a result of the judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission (C‑456/13 P, EU:C:2015:284), they were withdrawing their application for annulment, which the Court took formal note of in the minutes of the hearing.

35 DAI, RAR and SFIR submit, inter alia, that the Court should annul the contested measures. Furthermore, the CEFS asks the Court to dismiss the action as inadmissible or, in the alternative, to dismiss the action as unfounded inasmuch as it is directed against Implementing Regulations No 1240/2011 and No 1308/2011. It is clear from the statement in intervention lodged by the CEFS that the form of order which it is seeking relates to the application for annulment initially made by the applicants.

36 In that regard, it must be recalled that, according to the fourth paragraph of Article 40 of the Statute of the Court of Justice of the European Union, applicable to the procedure before the General Court by virtue of the first paragraph of Article 53 thereof, an application to intervene must be limited to supporting the form of order sought by one of the parties. Under Article 142(3) of the Rules of Procedure, the intervener must accept the case as it finds it at the time of its intervention. According to the case-law, those provisions do not preclude an intervener from using arguments different from those used by the party it is supporting, on condition that they do not alter the framework of the dispute and that the intervention is still intended to support the form of order sought by that party (judgments of 8 June 1995, Siemens v Commission, T‑459/93, EU:T:1995:100, paragraph 21; of 13 April 2005, Verein für Konsumenteninformation v Commission, T‑2/03, EU:T:2005:125, paragraph 52; and of 9 September 2009, Diputación Foral de Álava and Others, T‑230/01 to T‑232/01 and T‑267/01 to T‑269/01, EU:T:2009:316, paragraph 301).

37 It must be recalled that, at the hearing, the applicants informed the Court that as a result of the judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission (C‑456/13 P, EU:C:2015:284) they were withdrawing their application for annulment (see paragraph 34).

38 It follows that the heads of claim of DAI, RAR and SFIR, seeking annulment of the contested measures, on the one hand, and the application of the CEFS that the action be dismissed as inadmissible, or in the alternative, as unfounded in so far as it is directed against Implementing Regulations No 1240/2011 and No 1308/2011, on the other, change the subject matter of the proceedings as they stand following the applicants’ withdrawal of the application for annulment of the contested measures. Those heads of claim must therefore be rejected as inadmissible.

39 Pursuant to the second paragraph of Article 340 TFEU, in the case of non-contractual liability, the European Union must, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its institutions or by its servants in the performance of their duties.

40 The Court has consistently interpreted the second paragraph of Article 340 TFEU as meaning that the non-contractual liability of the Union and the exercise of the right to compensation for damage suffered depend on the satisfaction of a number of conditions, that is to say, the unlawfulness of the conduct of which the institutions are accused, the fact of damage and the existence of a causal link between that conduct and the damage complained of (judgment of 9 September 2008, FIAMM and Others v Council and Commission, C‑120/06 P and C‑121/06 P, EU:C:2008:476, paragraph 106 and the case-law cited).

41 As regards the condition relating to the unlawfulness of the alleged conduct of the institutions, according to the case-law, there must be a sufficiently serious breach of a rule of law intended to confer rights on individuals (judgment of 19 April 2007, Holcim (Deutschland) v Commission, C‑282/05 P, EU:C:2007:226, paragraph 47).

42 In support of their claim for damages, the applicants rely on the unlawfulness of Article 186(a) and Article 187 of Regulation No 1234/2007, infringement of Article 187 and Article 64(2) of that regulation, the absence of an adequate legal basis for the contested measures, infringement of the principle of non-discrimination, infringement of the principle of proportionality, infringement of the principle of legal certainty, infringement of the principle of protection of legitimate expectations, and breach of the duty of diligence and infringement of the principle of sound administration. Furthermore, they allege that the Commission was inactive and failed to adopt the only measure that was appropriate, that is to say, the suspension of customs duty on imported raw cane sugar for refining.

43 In the present case, it is necessary to assess, in the first place, whether the rules of law which the applicants rely on are intended to confer rights on individuals and, in the second, whether the Commission committed a sufficiently serious breach of those rules of law.

44 It is clear from the case-law that a rule of law is intended to confer rights on individuals where it concerns a provision which gives rise to rights for individuals which the national courts must protect, so that it has direct effect, a provision which creates an advantage which could be defined as a vested right, a provision which is designed for the protection of the interests of individuals or entails the grant of rights to individuals, and the content of those rights are sufficiently identifiable (see judgment of 16 October 2014, Evropaïki Dynamiki v Commission, T‑297/12, not published, EU:T:2014:888, paragraph 76 and the case-law cited).

45 In the first place, the applicants allege that Article 186(a) and Article 187 of Regulation No 1234/2007 are unlawful, on the ground that the European Parliament was not properly consulted on the subject of those provisions during the procedure for the adoption of that regulation. Indeed, first, there are material differences between Article 26(2) and Article 35 of Regulation No 318/2006, on the one hand, and Article 186(a) and Article 187 of Regulation No 1234/2007, on the other, even though the latter regulation was presented by the Commission as a mere measure of codification or simplification of the former. Secondly, given the Commission’s assurances regarding the identical nature of Regulations No 1234/2007 and No 318/2006, the Parliament made no observations on that subject.

46 In that regard, it must be stated that the applicants do not identify any rule of law intended to confer rights on individuals which has been infringed.

47 Furthermore, assuming that the applicants intended to rely on infringement of the obligation to consult the Parliament laid down in the third paragraph of Article 37(2) EC, it must be recalled that that article provides that:

‘The Council shall, on a proposal from the Commission and after consulting the European Parliament, acting by a qualified majority, make regulations, issue directives, or take decisions, without prejudice to any recommendations it may also make.’

48 It follows that Article 37 EC establishes a procedural rule pertaining to relations between the EU institutions.

49 Article 37 EC does not, therefore, give rise to rights which the courts must protect in an action for damages. Furthermore, that provision does not grant an advantage to individuals which could be defined as a vested right. Finally, the provision is not designed for the protection of the interests of individuals, nor does it entail the grant of rights to individuals the content of which is sufficiently identifiable.

50 Thus, the obligation to consult the Parliament under Article 37 EC is not a rule of law intended to confer rights on individuals (see, to that effect, judgment of 11 July 2007, Fédération des industries condimentaires de France and Others v Commission, T‑90/03, not published, EU:T:2007:208, paragraphs 61 and 62 and the case-law cited).

51 Therefore, in an action for damages, the applicants may not rely on a breach of the obligation to consult Parliament under Article 37 EC.

52 Consequently, the Court dismisses the action for damages in so far as it is based on the alleged illegality of Article 186(a) and of Article 187 of Regulation No 1234/2007 due to lack of proper consultation with the Parliament.

53 In the second place, the applicants claim that the contested measures infringe Article 187 and Article 64(2) of Regulation No 1234/2007.

54 In that regard, it should be recalled that Article 187 of Regulation No 1234/2007 is entitled ‘Disturbances caused by quotations or prices on the world market’, and that it provides as follows:

‘Where, with regard to the products of the cereals, rice, sugar and milk and milk products sectors, the quotations or prices on the world market of one or more products reach a level that disrupts or threatens to disrupt the availability of supply on the Community market and where that situation is likely to continue or to deteriorate, the Commission may take the necessary measures for the sector concerned. It may in particular suspend import duties in whole or in part for certain quantities.’

55 It is clear from the wording of Article 187 of Regulation No 1234/2007 that that provision is directed at the Commission and not at a particular group of persons. Furthermore, that provision does not make it possible to identify the content of the rights which could potentially be granted to individuals since it provides that the Commission may take ‘the necessary measures’ and ‘in particular suspend import duties in whole or in part’. Finally, the provision is not intended to confer rights on individuals. First, it is intended to prevent a disturbance in the availability of supply on the EU market resulting from quotations or prices on the world market, or to rectify such a market disturbance. Secondly, the provision provides that the Commission ‘may’ take the necessary measures in the sugar sector in the event of a disturbance or the risk of a disturbance in the availability of supply on the EU market.

56 Thus Article 187 of Regulation No 1234/2007 delegates to the Commission the power to take, if necessary, measures the content of which cannot be determined with sufficient precision in the event of a disturbance or a threat of a disturbance resulting from quotations or prices, in particular of sugar, on the world market.

57 It follows that Article 187 of Regulation No 1234/2007 is not designed to protect the applicants’ interests, does not confer on them any vested right and does not entail granting them rights the content of which is sufficiently identifiable.

‘The surplus levy shall be fixed by the Commission at a sufficiently high level in order to avoid the accumulation of [surplus quantities].’

59 It is clear from the wording and purpose of Article 64(2) of Regulation No 1234/2007 that that provision calls for the adoption of measures by the Commission, that it concerns surplus sugar produced by EU producers and that it does not entail granting rights to the applicants the content of which is sufficiently identifiable.

60 Therefore, the Court considers that Article 187 and Article 64(2) of Regulation No 1234/2007 do not confer subjective rights on individuals, infringement of which gives rise to a right to compensation on the basis of the second paragraph of Article 340 TFEU.

61 Consequently, the action for damages must be dismissed in so far as it is based on an alleged infringement of Article 187 and Article 64(2) of Regulation No 1234/2007.

62 In the third place, the applicants rely on infringement of the principle of non-discrimination, the principle of proportionality, the principle of legal certainty and the principle of protection of legitimate expectations.

63 In that regard, it is clear from the case-law that those principles constitute rules of law intended to confer rights on individuals (judgment of 6 December 2001, Emesa Sugar v Council, T‑43/98, EU:T:2001:279, paragraph 64, as regards the principle of proportionality; of 26 June 2008, Alferink and Others v Commission, T‑94/98, EU:T:2008:226, paragraph 64, as regards the principle of legal certainty; of 2 March 2010, Arcelor v Parliament and Council, T‑16/04, EU:T:2010:54, paragraph 134, as regards the principle of equal treatment; and of 28 April 2010, BST v Commission, T‑452/05, EU:T:2010:167, paragraph 156, as regards the principle of protection of legitimate expectations).

64 In the fourth place, the applicants claim that the Commission infringed the principle of sound administration.

65 In that regard, it has been held that the right to sound administration does not, in itself, confer rights upon individuals (judgment of 6 December 2001, Area Cova and Others v Council and Commission, T‑196/99, EU:T:2001:281, paragraph 43), except where it constitutes the expression of specific rights such as the right to have affairs handled impartially, fairly and within a reasonable time, the right to be heard, the right to have access to files, or the obligation to give reasons for decisions (judgment of 4 October 2006, Tillack v Commission, T‑193/04, EU:T:2006:292, paragraph 127).

66 In the present case, the applicants allege that the principle of sound administration was disregarded as a result of the Commission’s lack of diligence.

67 Inasmuch as it constitutes the expression of a specific right which the applicants may rely on, the principle of sound administration therefore constitutes a rule of law intended to confer rights on individuals.

68 It follows from the foregoing that infringement of the obligation to consult the Parliament and the alleged infringement of Article 187 and Article 64(2) of Regulation No 1234/2007 cannot give rise to liability on the part of the European Union. On the other hand, the alleged infringement of the principle of non-discrimination, the principle of proportionality, the principle of legal certainty, the principle of protection of legitimate expectations and the principle of sound administration can give rise to liability on the part of the European Union.

69 It is in the light of those considerations that it must be assessed whether, as the applicants maintain, the Commission, in the present case, committed a sufficiently serious breach of a rule of law intended to confer rights on individuals.

70 According to the case-law, the decisive test for finding that a breach of EU law is sufficiently serious is whether the EU institution concerned has manifestly and gravely disregarded the limits of its discretion. Where that institution has only a considerably reduced, or even no, discretion, the mere infringement of Community law may be sufficient to establish the existence of a sufficiently serious breach (judgment of 19 April 2007, Holcim (Deutschland) v Commission, C‑282/05 P, EU:C:2007:226, paragraph 47). The determining factor in deciding whether there has been such a breach is therefore the discretion which was available to the institution concerned (judgment of 12 July 2005, Commission v CEVA and Pfizer, C‑198/03 P, EU:C:2005:445, paragraph 66).

71 Thus, in order to assess whether the Commission committed a sufficiently serious breach of a rule of law intended to confer rights on individuals, it is necessary, in the first place, to determine the extent of the discretion enjoyed by the Commission in the present case and, in the second place, to examine whether that institution manifestly and gravely disregarded the limits of its discretion.

72 It should be borne in mind that it is settled case-law that the EU legislature enjoys wide discretion in matters concerning the common agricultural policy, commensurate with the political responsibilities given to it by Articles 40 and 43 TFEU (see judgment of 14 May 2009, Azienda Agricola Disarò Antonio and Others, C‑34/08, EU:C:2009:304, paragraph 44 and the case-law cited).

73 Furthermore, in the sphere of the common agricultural policy, the Council may find it necessary to confer on the Commission wide implementing powers, the Commission alone being able to monitor continually and closely trends on the agricultural markets and to act with urgency if the situation requires. The limits of those powers must be determined by reference, amongst other things, to the essential general aims of the market organisation (see judgment of 27 November 1997, Somalfruit and Camar, C‑369/95, EU:C:1997:562, paragraph 62 and the case-law cited).

74 Finally, the EU institutions enjoy broad discretion in those cases in which it has to evaluate a complex economic situation, as is the case with the common agricultural and fisheries policy. Its discretion is not limited solely to the nature and scope of the measures to be taken but also, to some extent, to the finding of basic facts (see, to that effect, judgment of 25 October 2001, Italy v Council, C‑120/99, EU:C:2001:567, paragraph 44 and the case-law cited).

75 In the present case, it is clear from the wording of Article 187 of Regulation No 1234/2007, recalled in paragraph 54 above, that, in the event of disturbances resulting from quotations or prices on the world market, the Commission is authorised to take ‘the necessary measures’, which are not confined to the suspension of import duties. Although that provision refers to the possibility of the Commission suspending import duties, it does not exclude the possibility of that institution adopting different measures.

76 Thus, the Court considers that, in the event of a disturbance or a threat of a disturbance on the EU market resulting from quotations or prices on the world market, the Commission has broad discretion, which excludes any automatism and is to be exercised in the light of the objectives of the economic policy laid down by Article 39 TFEU and by Regulation No 1234/2007.

77 It is in the light of those considerations that it is necessary to assess whether the Commission manifestly and gravely disregarded the limits on its discretion.

The existence of manifest and grave disregard of the limits of the Commission’s discretion

78 The applicants claim that the contested measures infringe Article 187 and Article 64(2) of Regulation No 1234/2007 and lack any adequate legal basis. Furthermore, according to the applicants, the Commission committed a sufficiently serious infringement of the principle of non-discrimination, the principle of proportionality, the principle of legal certainty, the principle of the protection of legitimate expectations and finally the principle of sound administration. In addition, they allege that the Commission was inactive and failed to adopt the only measure that was appropriate, that is to say, the suspension of customs duty on imported raw cane sugar for refining.

– The alleged infringement of Regulation No 1234/2007 and the alleged lack of an adequate legal basis

79 The applicants claim, first, that Article 187 of Regulation No 1234/2007 should be interpreted in the light of Regulation No 318/2006, secondly, that Implementing Regulation No 1240/2011 increased the sugar production quotas contrary to the policy choices which the Council made in Regulation No 1234/2007 and that it infringed Article 64(2) of that regulation, and thirdly, that Implementing Regulation No 1239/2011 is contrary to Article 187 of Regulation No 1234/2007, interpreted in the light of Article 26(2) of Regulation No 318/2006.

81 In the first place, it must be recalled that Article 187 and Article 64(2) of Regulation No 1234/2007 cannot be regarded as rules of law intended to confer rights on the applicants (see paragraphs 53 to 60 above).

82 In the second place, it must be pointed out that Article 201(e) of Regulation No 1234/2007 repealed Regulation No 318/2006 as of 1 October 2008.

83 Thus, the applicants cannot reasonably maintain that Article 187 of Regulation No 1234/2007 must be interpreted in the light of Regulation No 318/2006 which preceded it and was repealed.

84 In the third place, and in so far as the applicants maintain that Article 187 and Article 64(2) of Regulation No 1234/2007 do not constitute an adequate legal basis for adopting the contested measures, that line of argument must be rejected.

85 In that regard, it must first be pointed out that it is common ground that, on the date the contested measures were adopted, the price of sugar on the world market had reached a level which disrupted or threatened to disrupt the availability of supply on the EU market and that that situation was likely to continue or to deteriorate. Thus, recitals 1 and 2 of Implementing Regulations No 1239/2011 and No 1240/2011 draw attention to the high prices on the world market and the low level of stocks in the European Union which threatened to disrupt the availability of supply on the sugar market.

86 It follows that the conditions for intervention by the Commission on the basis of Article 187 of Regulation No 1234/2007 were met in the present case.

87 Next, it must be borne in mind that Implementing Regulation 1240/2011 laid down exceptional measures relating to, inter alia, the release of out-of-quota sugar on the EU market at reduced surplus levy during the marketing year 2011/12. It is clear from Article 1 of that regulation that it fixes a reduced ‘surplus’ levy for a maximum quantity of 400 000 tonnes. Furthermore, it is clear from Articles 7 and 8 of that regulation that the marketing certificates were for a limited period and were not transferable.

88 Thus, Implementing Regulation No 1240/2011 did not increase quotas which operators could rely on in subsequent marketing years. That regulation, which forms part of the framework defined by Article 187 of Regulation No 1234/2007, merely reduced, in particular circumstances and on a temporary basis, the levy on a fixed quantity of surplus sugar, that is to say, sugar produced in excess of the quota allocated to each undertaking.

89 Furthermore, Article 64(2) of Regulation No 1234/2007, which provides that the surplus levy is to be fixed by the Commission at a sufficiently high level in order to avoid the accumulation of surplus quantities, constituted an adequate legal basis for fixing, temporarily and for a fixed quantity, the surplus levy at EUR 85 per tonne.

90 As the Commission recalled in recital 2 of Implementing Regulation No 1240/2011, the low level of stocks threatened to disrupt the availability of supply of the EU’s sugar market. In recital 7 of that implementing regulation, the Commission also stated that the level of the levy set represented the difference between the most recent publicly available average EU price and the world market price for sugar. Furthermore, as a result of that reduction of the ‘normal’ level, EU sugar producers had a sufficient economic incentive to sell out-of-quota sugar on the EU sugar market inasmuch as they could sell out-of-quota sugar on that market at the same price as if they had sold it on the world market.

91 In those circumstances, the Commission was justified, within the scope of its broad discretion, in considering that a surplus levy of EUR 85 per tonne for a limited quantity of sugar produced in excess of the quota was high enough to avoid the accumulation of surplus quantities.

92 Finally, in relation to the suspension of import duty, Article 187 of Regulation No 1234/2007 could form the basis for the Commission’s use of a tendering procedure, such as that provided for in Implementing Regulation No 1239/2011, which applies to all types of sugar.

93 First, it must be recalled that Article 187 of Regulation No 1234/2007 concerns all ‘the necessary measures for the sector concerned’ and ‘in particular [the suspension of] import duties in whole or in part for certain quantities’. Thus, Article 187 did not preclude the establishment of a tendering procedure. Furthermore, it must be noted that the open tendering procedure was in fact intended to suspend, in part, import duties for certain quantities of sugar.

94 Secondly, it is clear from the wording of Article 187 of Regulation No 1234/2007 that the measures the Commission was authorised to take did not necessarily have to be limited to raw cane sugar imported by full-time refiners, such as those operated by the applicants.

95 Consequently, the Commission did not manifestly choose an inadequate legal basis when it adopted Implementing Regulations No 1239/2011 and No 1240/2011.

96 The applicants, supported by DAI, RAR and SFIR, allege infringement of the principle of non-discrimination.

97 In the first place, the applicants claim that discrimination between two identical or competing products produced by different operators is equivalent to discrimination between those operators. In addition, it is incorrect to state that cane sugar producers and beet-based sugar producers are not in comparable situations. First, those two categories of operators produce identical finished goods that are in direct competition one with the other. Secondly, numerous sugar beet processors have diversified into the refining of raw cane sugar. Thirdly, the two sectors are subject to strict limitations on production, albeit that the detailed rules differ.

98 In the second place, Implementing Regulation No 1239/2011 is manifestly different from Implementing Regulation No 1240/2011, which helps EU sugar producers considerably. On the one hand, Implementing Regulation No 1240/2011 introduces a surplus levy fixed at EUR 85 per tonne, applicable generally to a specific quantity divided into equal parts among beet processors. On the other, Implementing Regulation No 1239/2011 makes provision for an unknown, unpredictable customs duty which applies solely to successful tenderers for an unspecified amount. Furthermore, the customs duty resulting from the partial invitations to tender varies upwards and is three times greater than the sugar surplus levy. In addition, the volume of the invitations to tender is unknown and a tenderer never knows in advance how much it will receive with each invitation to tender. Moreover, raw cane sugar refiners are in a disadvantageous position compared with beet processors which submit tenders in order to supplement their principal industrial activity. More generally, the situation of raw cane sugar refiners differs according to their geographical situation and the local balance of supply and demand. Finally, the Commission’s internal documents show that it expressed doubts about invitations to tender being organised for import duties on sugar in view of the principle of non-discrimination.

99 In the third place, there is no objective justification for the Commission’s discriminatory conduct.

100 In the fourth place, Implementing Regulation No 57/2012, which suspended the application of Implementing Regulation No 1239/2011, created further discrimination against refiners, in that it blocked that sector’s access to raw material imports.

102 In that regard, it should be noted that the principle of non-discrimination is a general principle of EU law and, in the field of agriculture, is embodied in the second subparagraph of Article 40(2) TFEU (see judgment of 14 March 2013, Agrargenossenschaft Neuzelle, C‑545/11, EU:C:2013:169, paragraph 41 and the case-law cited).

103 The principle of non-discrimination requires comparable situations not to be treated differently and different situations not to be treated alike, unless such treatment is objectively justified (see judgment of 11 July 2006, Franz Egenberger, C‑313/04, EU:C:2006:454, paragraph 33 and the case-law cited).

104 As a preliminary point, it must be recalled that, in paragraph 37 of the judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission (C‑456/13 P, EU:C:2015:284), the Court considered that the applicants did not have the status of sugar producers.

105 In the present case, it must be observed, in the first place, that it is common ground: (i) that sugar produced by the applicants comes from the processing of sugar cane, a raw material which differs from sugar beet; (ii) that the sources of supply differ considerably, since 98% of raw cane sugar is imported, while sugar beet is produced within the European Union; and (iii) that there are differences in the processes of refining sugar cane and processing sugar beet.

106 In the second place, it must be pointed out that the common organisation of the market for sugar, governed by Regulation No 1234/2007, establishes a clear distinction between sugar which comes from the processing of beets grown in the territory of the European Union and imported sugar.

107 On the one hand, as regards imported sugar, Regulation No 1234/2007 provides that the Commission has the power to make imports conditional upon an import licence being issued and that import duties may be levied or, indeed, suspended.

108 Furthermore, as is stated in recital 65 of Regulation No 1234/2007, the trading system at the external borders of the European Union must be based on the undertakings accepted under the Uruguay Round of multilateral trade negotiations. In addition, recital 70 of that regulation states that, under certain conditions, the Commission has the power to open and administer import tariff quotas resulting from international agreements concluded in accordance with the Treaty or from other acts of the Council. Recital 72 of that regulation adds that the Community has concluded several preferential market access arrangements with third countries which allow those countries to export cane sugar to the Community under favourable conditions.

109 Thus, in accordance with Article 7 of Regulation (EC) No 1528/2007 of 20 December 2007 applying the arrangements for products originating in certain states which are part of the African, Caribbean and Pacific (ACP) Group of States provided for in agreements establishing, or leading to the establishment of, Economic Partnership Agreements (OJ 2007 L 348, p. 1), import duties on raw or already refined sugar from the ACP States, not being LDCs, were abolished with effect from 1 October 2009. Furthermore, in accordance with Article 11 of Council Regulation (EC) No 732/2008 of 22 July 2008 applying a scheme of generalised tariff preferences from 1 January 2009 and amending Regulations (EC) No 552/97, (EC) No 1933/2006 and Commission Regulations (EC) No 1100/2006 and (EC) No 964/2007 (OJ 2008 L 211, p. 1), imports of raw or already refined sugar from the LDCs were not subject to any import duty with effect from 1 October 2009. The latter provision gave full effect to the EU initiative known as ‘Everything But Arms’ which makes provision for duty free imports, with no quantitative limit on products coming from LDCs.

110 Finally, it must be pointed out that Article 153(3) of Regulation No 1234/2007 provided that the issuing of import licences for sugar intended for refining was reserved for full-time refiners during the first three months of the marketing years after the marketing year 2008/09. That provision also stipulated that those licences would cease to be valid at the end of the marketing year for which they had been issued.

111 On the other hand, as regards sugar which comes from the processing of beets grown in the territory of the European Union, Regulation No 1234/2007 made provision, inter alia, for a quantitative limitation of production in the form of quotas. Furthermore, for sugar produced under quota, compulsory standard qualities were established, provision was made for public intervention or private storage, and production charges were levied on quota holders in order to contribute to the financing of expenditure in the sugar sector. In addition, a minimal price was fixed for quota beet corresponding to a defined quality standard, and specific instruments were introduced in order to ensure a fair balance of rights and obligations between beet processors and sugar beet producers. Finally, for the surplus production of quota holders which do not satisfy certain conditions, a surplus levy is applied, the purpose of which is to discourage producers from accumulating surplus sugar on the EU market.

112 Thus, as regards the availability of supply on the EU market, Regulation No 1234/2007 introduces two very different sets of legal rules applicable to imported sugar and sugar which comes from the processing of beets grown in the territory of the European Union, respectively.

113 It is apparent from the foregoing that producers of sugar which comes from beets grown in the territory of the European Union, on the one hand, and refiners of imported raw cane sugar, on the other, cannot be regarded as being in a comparable situation as regards the organisation of the market for sugar and, more particularly, the availability of supply on the EU market.

114 Therefore, the Court finds that, in view of the elements which characterise their situations, the situation of producers of sugar which comes from beets grown in the territory of the European Union and that of refiners of imported raw cane sugar are not comparable as regards the availability of supply on the EU sugar market.

115 That conclusion cannot be called into question by the other arguments raised by the applicants.

116 First, it follows from the legal framework applicable to imported raw cane sugar that the applicants cannot claim that Implementing Regulation No 1240/2011 seriously upset the balance established by the EU legislature in Regulation No 318/2006 between sugar producers in the European Union (which account for 80% of the supply on the EU market) and importing refiners (20% of the supply) on the ground that that implementing regulation responded to a shortfall in imports of raw cane sugar by increasing the volume of production quotas for beet-based sugar in the European Union. Nor can the applicants claim that that balance was rigidly and mathematically fixed through quotas and imports guaranteed until 2009.

117 It must first be observed that the legislation makes no provision for the distribution claimed by the applicants between domestic production (80% of the supply) and imports (20% of the supply). Furthermore, those percentages are taken from a calculation made by the applicants and based, first, on the total amount of the domestic production quotas in Annex III to Regulation No 318/2006, and then in Annex VI to Regulation No 1234/2007, and secondly, on the potentially fluctuating demand on the EU market.

118 Next, it must be pointed out that refiners of imported raw cane sugar are not subject to a production quota or a production charge and that they need not pay a surplus levy either. Thus, the fact that refiners of imported raw cane sugar are not subject to the quota system means that they can refine and sell on the EU market, or even on the world market, as much sugar as they can procure and produce.

119 Furthermore, it must be pointed out that, pursuant to the provisions referred to in paragraph 109 above, refiners of imported raw cane sugar are entitled to import, free of import duties, a potentially unlimited quantity of sugar from LDCs and, subject to the implementation of a protective measure which in fact was never used, from ACP States.

120 Finally, it is important to note that, at the end of the 2008/09 marketing year, that is to say, 1 October 2009, under Article 153(3) of Regulation No 1234/2007, full-time refiners, being refiners of imported raw cane sugar, could no longer claim exclusive access to imports of raw sugar for refining, and therefore no longer had the guarantee of being able to satisfy their traditional supply needs free of customs duties.

121 Thus, the legal framework, set out in particular in paragraphs 117 to 120 above, demonstrates a freedom granted to refiners of imported raw cane sugar which is inconsistent with the applicants’ argument that the Commission is required to respect a strict balance, created beforehand by the legislature, between processors of beets grown in the territory of the European Union and refiners of imported raw cane sugar.

122 Secondly, in the present case, the applicant cannot reasonably rely on the judgments of 19 October 1977, Ruckdeschel and Others (117/76 and 16/77, EU:C:1977:160); of 25 October 1978, Royal Scholten-Honig and Tunnel Refineries (103/77 and 145/77, EU:C:1978:186); and of 10 March 1998, T. Port (C‑364/95 and C‑365/95, EU:C:1998:95). The situation which was at issue in those cases cannot be compared with the legal and factual situation in the present case.

123 Having regard to the foregoing, and without there being any need to assess whether producers of sugar which comes from beets grown in the territory of the European Union and refiners of imported raw cane sugar were treated differently in relation to the availability of supply on the EU sugar market, or whether the Commission’s allegedly discriminatory behaviour is objectively justified, the Court concludes that that institution did not gravely and manifestly disregard the limits on its discretion having regard to the principle of non-discrimination.

124 The applicants, supported by DAI and RAR, argue that the contested measures, including Implementing Regulation No 57/2012, fail to have regard to the principle of proportionality. They submit that the disturbance of the market which those measures were intended to remedy had been caused by a shortfall in imports of raw cane sugar. However, first of all, the measures finally adopted were clearly not appropriate to remedy that disturbance. Indeed, Implementing Regulation No 1240/2011 solely favoured EU sugar producers. Furthermore, Implementing Regulation No 1239/2011 made provision for an open tendering procedure the purpose of which was to collect the highest revenue from importers, and which applied, not only to importers of raw cane sugar for refining, but also to importers of already refined sugar. Lastly, the Commission failed to attain the objective of ensuring fair prices, since the measures which it adopted, and in particular the invitations to tender, brought about an increase in the price of raw sugar imports and an increase in consumer prices. Secondly, the least onerous, most appropriate measure to remedy the problem observed would have been to suspend standard import duties for raw cane sugar intended for refining.

126 It should be borne in mind that the principle of proportionality requires that acts of the EU institutions be appropriate for attaining the legitimate objectives pursued by the legislation at issue and do not go beyond what is necessary in order to achieve those objectives (see, to that effect, judgment of 12 July 2012, Association Kokopelli, C‑59/11, EU:C:2012:447, paragraph 38 and the case-law cited).

127 Furthermore, when implementing Article 187 of Regulation No 1234/2007, the Commission has broad discretion, inasmuch as its action involves choices of a political nature, and it is called upon to make complex assessments and evaluations (see paragraphs 72 to 76 above).

128 Thus the question is not whether a measure adopted in such an area was the only or the best possible measure, since its legality can be affected only if the measure is manifestly inappropriate having regard to the objective which the Commission is seeking to pursue (see, to that effect, judgment of 8 June 2010, Vodafone and Others, C‑58/08, EU:C:2010:321, paragraph 52 and the case-law cited).

129 However, even though it has broad discretion, the Commission must base its choice on objective criteria. Furthermore, in assessing the burdens associated with various possible measures, it must examine whether objectives pursued by the measure chosen are such as to justify even substantial negative economic consequences for certain operators (see, to that effect, judgment of 8 June 2010, Vodafone and Others, C‑58/08, EU:C:2010:321, paragraph 53 and the case-law cited).

130 Therefore, it is necessary to examine, in the light of the criteria referred to in paragraphs 126 to 129 above, whether, when it adopted the contested measures, the Commission failed to have regard to the principle of proportionality on the ground that those measures were not confined to suspending import duties on imported raw cane sugar intended for refining.

131 In the first place, it must be recalled that the contested measures were adopted by the Commission in order to avert a risk of disruption of the availability of supply on the EU sugar market following an increase in prices on the world market, and not solely to address a shortage of cane sugar imports. In that regard, it must be pointed out that, in their application, the applicants acknowledged that the world sugar shortage was caused, inter alia, by the organised decrease in output in the European Union.

132 Thus, the steps taken by the Commission by means of the contested measures were intended to increase the availability of supply in the EU sugar market.

133 In the second place, it must be recalled that, in such circumstances, the Commission may, under Article 187 of Regulation No 1234/2007, take the necessary measures for the sector concerned and, in particular, suspend import duties in whole or in part for certain quantities of sugar.

134 Thus, the Commission adopted, first, Implementing Regulation No 1239/2011 which makes it possible for customs duty on sugar imports to be reduced and, secondly, Implementing Regulation No 1240/2011 which introduces exceptional measures on the release of out-of-quota sugar and isoglucose on the EU market at a reduced surplus levy.

135 In the third place, it is not seriously in dispute that those measures were capable of increasing the supply of sugar in the European Union and therefore that they were suited to the objective being pursued.

136 It must be pointed out that, as is stated in recital 3 of Implementing Regulation No 1240/2011, substantial quantities of out-of-quota sugar were available on the EU sugar market, and part of that sugar could be released on the EU market in order to satisfy demand in part and to avoid excessive price increases. That regulation therefore made it possible for sugar in excess of the quota to be released on the market at a reduced surplus levy for a total quantity of 400 000 tonnes of sugar and 28 000 tonnes of isoglucose. Furthermore, as regards raw cane sugar imports, Implementing Regulations No 1281/2011, No 1316/2011, No 1384/2011 and No 27/2012 led to the grant of import licences at reduced customs duty for a total quantity of 191 000 tonnes of raw cane sugar for refining.

137 In the fourth place, Implementing Regulation No 1239/2011 did not go beyond the limits of what was necessary to achieve the objectives pursued. As regards the objectives pursued, the tendering procedure was appropriate in that, given its flexibility, it enabled the Commission, in a context of volatile prices on the world market, to determine, having regard to the situation on that market and the supply requirements of the EU market, the quantities needed and the customs duties which the operators concerned were ready to pay.

138 Thus, the objective pursued by the Commission and the need to take account of the current and future situation on the sugar market in the European Union justified the constraints imposed on the sugar importers. In other words, the measures adopted made it possible for account to be taken of the fluctuating circumstances on the world market, the financial burden arising from the implementation of the measures chosen, overproduction on the territory of the European Union and the development of imports at zero customs duty coming from ACP States and LDCs.

139 In addition, as was recalled in recital 9 of Implementing Regulation No 1239/2011, during the first three months of the marketing year import licences for sugar intended for refining were to be issued only to full-time refiners. It must also be noted that Implementing Regulations No 1281/2011, No 1316/2011, No 1384/2011 and No 27/2012 led to the fixing of a minimal level of customs duty for imports of raw cane sugar for refining. Consequently, the licences issued following the invitations to tender, for a quantity of 191 000 tonnes, were delivered only for raw cane sugar intended for refining.

140 In addition, as regards the level of the reduced duty fixed by the Commission, it must be pointed out that it corresponds to tenders actually received by the Member States and that it can be explained by the fact that the tenderer which submitted the highest bid could, where appropriate, apply for a licence for the entire quantity requested up to a limit of 45 000 tonnes.

141 Finally, as regards the suspension of the tendering procedure opened by Implementing Regulation No 1239/2011, the Commission explained in recital 2 of Implementing Regulation No 57/2012 that, since the availability of supply on the sugar market had improved, a further reduction of the import duties was not necessary.

142 In those circumstances, the Court finds that, in the context of its broad discretion, the Commission did not adopt a manifestly inappropriate measure when it suspended that tendering procedure.

143 As regards the applicants’ arguments raised in their reply that the contested measures contributed to an increase in prices, it must be pointed out that, in the context of its broad discretion, the Commission set itself the objective of avoiding excessive price increases and that it had to reconcile that objective with other objectives laid down in Article 39 TFEU. Furthermore, inasmuch as the Commission had to assess the future effects of those measures having regard to price developments on the world market, those effects could not be accurately foreseen and the measures taken do not appear to be manifestly inappropriate in the light of the information available to the Commission when the regulations in question were adopted.

144 Therefore, the Commission did not gravely and manifestly disregard the limits imposed on its discretion having regard to the principle of proportionality.

145 The applicants claim that, when the Commission adopted Implementing Regulation No 1239/2011, and Implementing Regulations No 1281/2011, No 1316/2011, No 1384/2011 and No 27/2012, it failed to have regard to the principle of legal certainty in that those measures create a system whereby customs duties are not predictable or fixed through the application of consistent, objective criteria. Instead, customs duties are determined by the operators’ subjective willingness to pay, and have no link with the actual products being imported, and the Commission is given full discretion to set the quantities concerned.

147 According to settled case-law, the principle of legal certainty requires that rules of law be clear and precise and predictable in their effect, so that interested parties can ascertain their position in situations and legal relationships governed by EU law (see judgments of 8 December 2011, France Télécom v Commission, C‑81/10 P, EU:C:2011:811, paragraph 100 and the case-law cited, and of 31 January 2013, LVK, C‑643/11, EU:C:2013:55, paragraph 51).

148 In the first place, it is clear from recital 3 and from Article 6 of Implementing Regulation No 1239/2011 that the quantity of sugar that may be imported at reduced import duties and the level of that reduction must be fixed having regard to the current state and foreseeable development of the European Union and world sugar markets. Next, it is clear from Article 6 that, where a minimal level of customs duty is fixed by the Commission, all tenders quoting an amount exceeding that level are to be accepted. Finally, Implementing Regulations No 1281/2011, No 1316/2011, No 1384/2011 and No 27/2012 fixed a minimal level of customs duties on the basis of tenders received and the tenderers were informed of the result of their participation.

149 Thus, before submitting their tenders, the applicants were clearly and precisely informed of the criteria by which the Commission had determined the quantity of sugar that may be imported and the level of the reduced duties. Furthermore, they do not claim that those criteria were changed. In addition, after the tenders were submitted, the applicants were informed of the minimal level that was to be applied. Thus, they were in a position to assess clearly and precisely the effects on the result of their participation of the regulations fixing a minimal level of customs duty. In particular, if the tender exceeded the minimal level retained by the Commission, the applicants were aware of the amount of duty that they should pay, that is to say, the amount contained in their tender. Finally, the fact that a minimal level was fixed for each partial invitation to tender enabled them to adapt their actions to meet with subsequent invitations to tender.

150 In the second place, it must be recalled that the principle of legal certainty has, as a corollary, the principle of protection of legitimate expectations and that, according to the case-law, economic operators are not justified in having a legitimate expectation that an existing situation which is capable of being altered by the EU institutions in the exercise of their discretionary power will be maintained, particularly in an area such as that of the common organisation of the markets, the objective of which involves constant adjustment to reflect changes in economic circumstances (see judgment of 15 July 2004, Di Lenardo and Dilexport, C‑37/02 and C‑38/02, EU:C:2004:443, paragraph 70 and the case-law cited).

151 Thus, the possibility of the Commission fixing the minimal level of customs duty having regard to the current state and foreseeable development of the EU and world sugar markets, on the one hand, and rises in the minimal levels finally decided on by the Commission, on the other, cannot be seen as being contrary to the principle of protection of legitimate expectations which is the corollary of the principle of legal certainty.

152 Therefore, the Court considers that the Commission did not gravely and manifestly disregard the limits imposed on its discretion having regard to the principle of legal certainty.

– The alleged infringement of the principle of protection of legitimate expectations

153 The applicants, supported by DAI, argue that, when the Commission adopted the contested measures, it clearly failed to have regard to the principle of the protection of legitimate expectations, inasmuch as it had indicated to them beforehand that it did ‘not imagine any EU sugar quota increase’ and that it would take ‘the most appropriate and balanced decision’ in light of the ‘interest of sugar beet producers, EU sugar producers, EU refiners, ACP countries, [LDCs] and other sugar exporters’. Moreover, they were given similar assurances orally on numerous occasions.

155 In the first place, it must be recalled that, as is apparent from paragraphs 79 to 144 above, the Commission did not increase sugar quotas in the European Union and did not gravely and manifestly disregard the limits imposed on its discretion having regard to the principle of non-discrimination and the principle of proportionality.

156 In the second place, and in any event, it must be pointed out that any economic operator to whom an institution has given justified hopes that an existing situation will be maintained may rely on the principle of the protection of legitimate expectations (see judgment of 9 September 2015, Lito Maieftiko Gynaikologiko kai Cheirourgiko Kentro v Commission, C‑506/13 P, EU:C:2015:562, paragraph 27 and the case-law cited).

157 In whatever form it is given, information which is precise, unconditional and consistent and comes from authorised and reliable sources constitutes assurances capable of giving rise to such hopes. However, a person may not plead breach of that principle unless he has been given precise assurances by the administration (see judgment of 17 March 2011, AJD Tuna, C‑221/09, EU:C:2011:153, paragraph 72 and the case-law cited).

158 In the present case, it does not appear from the file that the Commission actually gave precise assurances in relation to the measures which it intended to adopt. The applicants’ arguments are based on a letter from a head of unit at the Commission, but it has not been demonstrated that he was authorised to represent and bind that institution in relation to the measures it intended to adopt. Furthermore, the applicants rely, without further clarification, on conversations which they had with the Commission services. It follows that the line of argument that the Commission stated that it did ‘not imagine any EU sugar quota increase’ is based on a simple declaration and is not founded on precise, consistent information coming from authorised, reliable sources.

159 In view of the foregoing, the Commission did not gravely and manifestly disregard the limits imposed on its discretion having regard to the principle of protection of legitimate expectations.

160 The applicants, supported by DAI and RAR, state that the Commission had been informed on several occasions, from as early as March 2009, of imminent disturbances on the market and of the shortfall in imports. However, the Commission failed to take any action for several months, ignored the interests of cane sugar refiners, adopted measures that were clearly inappropriate in view of the problems observed and upset the balance established by Regulation No 1234/2007. Lastly, the Commission has acknowledged that it made grave errors in its balance sheets for 2009, 2010 and 2011 concerning stocks at the end of the marketing year.

162 In that regard, it should be recalled that the guarantees afforded by the EU legal order in administrative proceedings include, in particular, the principle of sound administration, affirmed in Article 41 of the Charter of Fundamental Rights of the European Union, which entails the duty of diligence, that is, the duty of the competent institution to examine carefully and impartially all the relevant aspects of the individual case (judgments of 27 September 2012, Applied Microengineering v Commission, T‑387/09, EU:T:2012:501, paragraph 76, and of 16 September 2013, ATC and Others v Commission, T‑333/10, EU:T:2013:451, paragraph 84).

163 It has also been held that, in order for a breach of the duty of diligence to constitute a manifest and grave disregard of the limits on the discretion enjoyed by an institution, there must have been a complete failure to satisfy the duty of diligence, a simple failure to appreciate properly the extent of the obligations arising from that duty not sufficing (judgment of 23 September 2015, Hüpeden v Council and Commission, T‑206/14, not published, EU:T:2015:672, paragraph 48).

164 In the present case, and once again, it must be pointed out that the applicants’ arguments used to demonstrate a breach of the Commission’s duty of diligence merge, at least in part, with the arguments alleging a sufficiently serious breach of Regulation No 1234/2007, infringement of the principle of non-discrimination and infringement of the principle of proportionality.

165 In any event, it must be pointed out, first, that, as the applicants observed in the application, ‘in March 2009, world sugar prices started to rise sharply ... due to a sudden worldwide sugar deficit caused by an unforeseen imbalance between the volume of world consumption and world production’. Also in the application, the applicants indicated that the global sugar deficit ‘was to a large extent caused by a significant reduction of the production of sugar in India (and also in various other countries) as a result of poor climatic conditions, as well as of the organised decrease in EU output’. The applicants added that ‘the imbalance [had been] worsened by a concomitant growth of 3.8% of world sugar consumption’.

167 The complex and uncertain nature of the phenomena observed is confirmed, in particular, by certain information on the court file, and especially by the applicants’ letter to the Commission of 7 September 2009.

168 Secondly, it is important to note that, following an in-depth analysis of the market situation, and after carrying out a retrospective analysis of the 2009/2010 marketing year which ended on 30 September 2010, the Commission adopted the first measures made necessary by a risk of disruption of the availability of supply on the EU sugar market, starting with Regulation No 1100/2010 which suspended the so-called ‘CXL’ customs duties.

169 It is also apparent from the file submitted to the Court that the Commission relied, first, on data sent by Member States concerning domestic production and, secondly, on data sent by ACP States which had previously been found to be reliable in relation to imports from those States.

170 Thus, in a specific international context, marked by great uncertainty over supply, demand and therefore prices, it is apparent from the court file that the Commission adopted a cautious approach and that it examined all relevant information in its possession before adopting measures on the basis of Article 187 of Regulation No 1234/2007.

171 Thirdly, as regards the errors committed and acknowledged by the Commission concerning the stock balance sheets for 2009, 2010 and 2011, it must be pointed out that the applicants demonstrated the existence of those errors by means of evidence gathered ex post.

172 Furthermore, it must be made clear that, as the Commission maintains, the decisions of that institution pertaining to the availability of supply on the EU market must be taken before the end of each marketing year. In the marketing years 2008/09 to 2010/11, the estimates were not wholly reliable owing to the ongoing restructuring of the sugar sector which led to the abandonment of production quotas.

173 Therefore, the Commission did not gravely and manifestly disregard the limits of its discretion having regard to the principle of sound administration concerning the duty of diligence.

174 It follows from the foregoing that, when the Commission adopted the contested measures, it did not seriously infringe Regulation No 1234/2007, or the principle of non-discrimination, the principle of proportionality, the principle of legal certainty, the principle of protection of legitimate expectations or the principle of sound administration.

175 The same conclusion must be drawn as regards the inaction pleaded by the applicants, consisting in the Commission’s failure to adopt adequate measures in order to re-establish the availability of supplies of raw cane sugar and the competitive balance between the parties concerned. The inaction pleaded by the applicants cannot be examined independently of the measures which the Commission actually adopted in the context of its broad discretion after it was concluded that there was a disturbance in the availability of supply on the EU sugar market. In other words, and as is apparent from the foregoing considerations, the suspension of the import duties on raw cane sugar for refining sought by the applicants was not the only measure that could have been adopted by the Commission in the present case. The same conclusion also applies to Regulation No 634/2011, which is merely mentioned by the applicants and was not the subject of specific argument on their part to demonstrate that its adoption constituted a sufficiently serious breach of a rule of law intended to confer rights on individuals.

176 In the light of all the foregoing considerations, the Court finds that the Commission’s conduct complained of gives no indication of a sufficiently serious breach of a rule of law intended to confer rights on individuals.

177 In accordance with settled case-law, if any one of the conditions for the non-contractual liability of the European Union has not been satisfied, the action must be dismissed in its entirety and it is unnecessary to consider the other conditions which give rise to that liability (judgments of 15 September 1994, KYDEP v Council and Commission, C‑146/91, EU:C:1994:329, paragraph 81, and of 14 October 1999, Atlanta v European Community, C‑104/97 P, EU:C:1999:498, paragraph 65).

178 The action for damages is therefore to be dismissed in its entirety without there being any need to rule on the pleas of inadmissibility raised by the Commission (judgment of 26 February 2002, Council v Boehringer, C‑23/00 P, EU:C:2002:118, paragraph 52).

179 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. In the present case, since the applicants have been unsuccessful in all their heads of claim on the substance of the case, they must be ordered to bear their own costs and to pay those incurred by the Commission, in accordance with the form of order sought by the Commission.

180 Under Article 138(1) of the Rules of Procedure the Member States and institutions which intervene in the proceedings are to bear their own costs. Moreover, under Article 138(3) of the Rules of Procedure, the Court may order an intervener other than those referred to in Article 138(1) and (2) to bear its own costs. The Court decides that the Council, DAI, RAR, Lemarco SA, Lemarco Cristal Srl, Zaharul Liesti SA, SFIR and the CEFS are to bear their own costs.

2. Orders T & L Sugars Ltd and Sidul Açúcares, Unipessoal Lda to bear their own costs and to pay those incurred by the European Commission;

3. Orders the Council of the European Union, DAI Sociedade de Desenvolvimento Agro-Industrial, SA, RAR — Refinarias de Açùcar Reunidas, SA, Lemarco SA, Lemarco Cristal Srl, Zaharul Liesti SA, SFIR — Società Fondiaria Industriale Romagnola SpA, SFIR Raffineria di Brindisi SpA and the Comité européen des fabricants de sucre (CEFS) to bear their own costs.

The existence of manifest and grave disregard of the limits of the Commission’s discretion

– The alleged infringement of Regulation No 1234/2007 and the alleged lack of an adequate legal basis

– The alleged infringement of the principle of protection of legitimate expectations

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	Court of Justice of the European Communities (including Court of First Instance Decisions)
You are here: BAILII >> Databases >> Court of Justice of the European Communities (including Court of First Instance Decisions) >> T & L Sugars and Sidul Acucares v Commission (Judgment) [2016] EUECJ T-103/12 (29 November 2016) URL: http://www.bailii.org/eu/cases/EUECJ/2016/T10312.html Cite as: EU:T:2016:682, [2016] EUECJ T-103/12, ECLI:EU:T:2016:682

Court of Justice of the European Communities (including Court of First Instance Decisions)