Republic of Poland v Council of the European Union.

• Jurisdiction: European Union
• Celex Number: 62004CC0273
• ECLI: ECLI:EU:C:2007:361
• Court: Court of Justice (European Union)
• Docket Number: C-273/04
• Date: 21 June 2007
• Procedure Type: Recurso de anulación - infundado

OPINION OF ADVOCATE GENERAL

POIARES MADURO

delivered on 21 June 2007 (1)

Case C‑273/04

Republic of Poland

v

Council of the European Union

(Common Agricultural Policy – Reform – Enlargement of the European Union)

1. The action before the Court in this case is the first direct action brought by the Republic of Poland. It raises several important and untested legal issues which justify consideration by the Grand Chamber. It is brought in the context of the protracted and difficult accession negotiations concerning the agricultural sector and reform of the common agricultural policy (hereinafter the ‘CAP’) and seeks clarification from the Court of the extent of the power enjoyed by Community institutions to adapt provisions of accession agreements. It will also require the Court to determine the extent of the judicial protection afforded to prospective Member States against acts adopted between the signature and entry into force of accession instruments.

I – Legal framework and facts

2. This action seeks the annulment of Article 1(5) of Council Decision 2004/281/EC of 22 March 2004 adapting the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, following the reform of the common agricultural policy. (2)

3. The contested decision was adopted under Article 2(3) of the Treaty between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Finland, the Kingdom of Sweden, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Union) and the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia, the Slovak Republic on the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union, (3) which provides that: ‘[n]notwithstanding paragraph 2, the institutions of the Union may adopt before accession the measures referred to in … Articles 21 and 23 … . These measures shall enter into force only subject to and on the date of the entry into force of this Treaty’. It was adopted under Article 23 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded, (4) according to which ‘the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may make the adaptations to the provisions of this Act relating to the [CAP] which may prove necessary as a result of a modification in Community rules. Such adaptations may be made before the date of accession.’

4. The applicant is complaining that Article 1(5) of the contested decision (hereinafter the ‘contested provision’) extended the mechanism providing for a gradual introduction of direct payments (‘phasing-in’ mechanism) in the new Member States to new direct payments, thus bringing about an extension to the derogations from the principle of payment in full. This extension of the system of part payments results in a considerable diminution in payments to Polish farmers in contrast to a situation where payments are made in their full amount.

5. This action is but the litigious counterpart to the challenge to the mechanism for the gradual introduction of direct payments made by the Republic of Poland at the time of the accession negotiations. On many occasions during those negotiations Poland sought to secure that access to direct payments in full would be available to Polish farmers as from the date of accession. It did so in vain. In an issues paper of 30 January 2002, (5) the Commission had advocated the progressive introduction during a transitional period of direct payments in the new Member States for several reasons, relating essentially to the need to pursue the restructuring under way in the agricultural sector of those States, the farmers’ income situation and the requirement to avoid imbalances in relation to other economic sectors or the creation of situations in which speculative returns may be anticipated. On the basis of that recommendation, the position of the fifteen Member States in relation to the Republic of Poland at the accession negotiations, laid down in a common position of the European Union dated 31 October 2002, (6) was to decline Poland’s request that direct payments be granted to its farmers after accession to the same extent as they are to farmers in the Union and progressively to introduce those payments in Poland during a transitional period. Discussions on this point continued until the accession conference held on the occasion of the European Council of Copenhagen on 12 and 13 December 2002. The conclusions of the latter state that the question of the progressive introduction of direct payments in the new Member States was resolved in line with the terms of the common position of 31 October 2002. When, following the reform of the CAP secured after the signature of the Treaty of Accession, the Commission presented, on 27 October 2003, the draft of the contested decision, the Polish Government was unable to prevent its adoption, despite its opposition expressed at all stages of the legislative procedure.

6. For a proper understanding of the legal issues involved in the dispute, it is necessary briefly to recall the legislative framework.

7. Payments directly granted to farmers under income support regimes were initially governed by Council Regulation (EC) No 1259/1999 of 17 May 1999 establishing common rules for direct support schemes under the common agricultural policy; (7) the list of those direct support schemes is annexed to that regulation. Article 20 of the Act of Accession provides that ‘the acts listed in Annex II to this Act shall be adapted as specified in that Annex’. The mechanism for the gradual introduction of direct payments in the new Member States was, for its part, provided for in Annex II, Chapter 6, A, point 27, to the Act, inserting Article 1a into Regulation No 1259/1999. Under Article 1a, the mechanism for gradual introduction concerns direct payments ‘granted under the support regimes mentioned in Article 1’. For its part, Article 1 of Regulation No 1259/1999 defines these direct payments and refers to the annex to that regulation which lists them. (8)

8. Accordingly, on 29 September 2003, the Council adopted Regulation (EC) No 1782/2003 of 29 September 2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) No 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001, (9) repealing Regulation No 1259/1999 with effect from 1 May 2004. Article 1 of Regulation No 1782/2003 and Annex I thereto add to the already existing schemes direct support schemes to farmers producing nuts and energy crops and provide for additional payments under the direct support scheme to the dairy sector.

9. By the contested decision of 22 March 2004, the Council, in Article 1(5), replaced the provisions amending Regulation No 1259/1999 in point 27 of Chapter 6 A of Annex II to the Act of Accession with provisions amending Regulation No 1782/2003, in order to take account of the amendments to the CAP as a result of the adoption of the latter regulation, occurring after the signature of the accession instruments. Point 27 inserted Article 143a into Regulation No 1782/2003, providing for the gradual introduction, in the new Member States, according to a timetable, of ‘direct payments’, that is to say not only payments which already appear in Annex I to the Regulation but also those subsequently inserted into that Annex.

10. According to the Republic of Poland, the contested provision unlawfully extends the system of part payments. It no longer applies only to the support instruments exhaustively enumerated in the Annex to Regulation No 1259/1999. It henceforth concerns all ‘direct payments’ in general, that is to say also new direct payments. The latter include the payments already introduced by Regulation No 1782/2003, namely the payments in the sectors of nuts and fuel crops and the additional payments in the dairy sector. They also include the direct payments to be subsequently put in place and, therefore, inserted in Annex I to Regulation No 1782/2003.

11. It is for that reason that the applicant has brought this action for annulment which it is essentially basing on three pleas. But, before examining the merits of the action, it is appropriate first to express a view on its admissibility.

II – Admissibility

12. In this case, on 23 September 2004, the Council raised a plea of inadmissibility in regard to the action under Article 91 of the Rules of Procedure, arguing that it was manifestly inadmissible for being out of time. The Court decided to rule on this plea...