JUDGMENT OF THE COURT OF FIRST INSTANCE (Third Chamber)
17 January 2002 (1) (Association arrangements for the overseas countries and territories - Imports of sugar and mixtures of sugar and cocoa - Regulation (EC) No 2423/1999 - Safeguard measures - Application for annulment - Admissibility)
In Case T-47/00,
Rica Foods (Free Zone) NV, established in Oranjestad (Aruba), represented by G. van der Wal, advocaat, with an address for service in Luxembourg,
applicant,
supported by
Kingdom of the Netherlands, represented by H. Sevenster, acting as Agent, with an address for service in Luxembourg,
intervener,
v
Commission of the European Communities, represented by T. van Rijn and C. Van der Hauwaert, acting as Agents, with an address for service in Luxembourg,
defendant,
supported by
Kingdom of Spain, represented by N. Díaz Abad, acting as Agent, with an address for service in Luxembourg,
intervener,
APPLICATION for annulment of Commission Regulation (EC) No 2423/1999 of 15 November 1999 introducing safeguard measures in respect of sugar falling within CN code 1701 and mixtures of sugar and cocoa falling within CN codes 1806 10 30 and 1806 10 90 originating in the overseas countries and territories (OJ 1999 L 294, p. 11),
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Third Chamber),
composed of: J. Azizi, President, K. Lenaerts and M. Jaeger, Judges,
Registrar: J. Plingers, Administrator,
having regard to the written procedure and further to the hearing on 5 July 2001,
gives the following
Judgment
Legal background
1.
On 25 July 1991 the Council adopted Decision 91/482/EEC on the association of the overseas countries and territories with the European Economic Community (OJ 1991 L 263, p. 1, the OCT Decision).
2.
Article 101(1) of the OCT Decision provides:
Products originating in the OCTs shall be imported into the Community free of import duty.
3.
Article 102 of the same decision provides:
... the Community shall not apply to imports of products originating in the OCTs any quantitative restrictions or measures having equivalent effect.
4.
The first indent of Article 108(1) of the OCT Decision refers to Annex II thereto (hereinafter Annex II) for definition of the concept of originating products and the methods of administrative cooperation relating thereto. Under Article 1 of Annex II, a product is to be considered as originating in the OCTs, the Community or the African, Caribbean and Pacific States (the ACP States) if it has been either wholly obtained or sufficiently worked or processed there.
5.
Article 6(2) of Annex II lays down the rules known as the EC/OCT cumulation of origin rule and the ACP/OCT cumulation of origin rule:
When products wholly obtained in the Community or in the ACP States undergo working or processing in the OCT, they shall be considered as having been wholly obtained in the OCT.
6.
Council Decision 97/803/EC of 24 November 1997 amending at mid-term the OCT Decision (OJ 1997 L 329, p. 50), inserted a new Article 108b in the OCT Decision. The first paragraph of that article provides:
The ACP/OCT cumulation of origin referred to in Article 6 of Annex II shall be allowed for an annual quantity of 3 000 tonnes of sugar ...
7.
Decision 97/803 did not, however, limit the application of the EC/OCT cumulation of origin rule.
8.
Article 109(1) of the OCT Decision authorises the Commission to take the necessary safeguard measures if, as a result of the application of [the OCT] decision, serious disturbances occur in a sector of the economy of the Community or one or more of its Member States, or their external financial stability is jeopardised, or if difficulties arise which may result in a deterioration in a sector of the Community's activity or in a region of the Community .... Under Article 109(2) of the OCT Decision, the Commission must choose such measures as would least disturb the functioning of the association and the Community. Moreover, [those] measures shall not exceed the limits of what is strictly necessary to remedy the difficulties that have arisen.
The contested regulation
9.
By Commission Regulation (EC) No 2423/1999 of 15 November 1999 the Commission introduced safeguard measures on the basis of Article 109 of the OCT Decision in respect of sugar falling within CN code 1701 and mixtures of sugar and cocoa falling within CN codes 1806 10 30 and 1806 10 90 originating in the overseas countries and territories (OJ 1999 L 294, p. 11, the contested regulation).
10.
The Commission considered that increasing quantities of sugar imported from 1997 onwards under the EC/OCT cumulation of origin procedure and in the form of mixtures of sugar and cocoa ... originating in the [OCTs] might result in a serious deterioration in the operation of the common organisation of the market in the sugar sector and have highly detrimental effects on Community sugar operators (first and second recitals in the preamble to the contested regulation).
11.
For sugar qualifying for EC/OCT cumulation of origin, the safeguard measure imposed takes the form of a minimum price. Accordingly, Article 1(1) of the contested regulation provides:
Products with EC-OCT cumulation of origin falling within CN code 1701 shall be released for free circulation in the Community free of import duties only if the import price cif of unpacked goods of standard quality as laid down by Council Regulation (EEC) No 793/72 (OJ, English Special Edition 1972 (I), p. 299) fixing the standard quality for white sugar is not less than the intervention price of the products in question.
12.
As regards mixtures of sugar and cocoa (products falling within CN codes 1806 10 30 and 1806 10 90) originating in the OCTs, Article 2 of the contested regulation provides that they are to be released for free circulation in the Community subject to Community surveillance in accordance with the rules laid down in Article 308d of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1).
Background to the dispute, procedure and forms of order sought by the parties
13.
The applicant, which is established in Aruba, a territory belonging to the OCTs, imports sugar from the Community, processes it, and then exports it to the Community. It also produces mixtures of sugar and cocoa from sugar imported from the Community, which it exports to the latter.
14.
By application lodged at the Registry of the Court of First Instance on 28 February 2000 the applicant brought an action under the fourth paragraph of Article 230 EC for annulment of the contested regulation.
15.
By applications lodged at the Registry of the Court of First Instance on 22 June and 7 July 2000 respectively, the Governments of the Kingdom of Spain and of the Kingdom of the Netherlands applied, pursuant to Article 115 of the Rules of Procedure of the Court of First Instance, for leave to...
