Case C-441/05
Roquette Frères
v
Ministre de l’Agriculture, de l’Alimentation, de la Pêche et de la Ruralité
(Reference for a preliminary ruling from the
cour administrative d’appel de Douai)
(Common organisation of the markets in the sugar sector – Isoglucose – Determination of the basic quantities used for the allocation of production quotas – Isoglucose produced as an intermediate product – Article 24(2) of Regulation (EEC) No 1785/81 – Article 27(3) of Regulation (EC) No 2038/1999 – Article 1 of Regulation (EC) No 2073/2000 – Article 11(2) of Regulation (EC) No 1260/2001 – Article 1 of Regulation (EC) No 1745/2002 – Article 1 of Regulation (EC) No 1739/2003 – Illegality of a Community measure raised before the national court – Reference for a preliminary ruling on validity – Admissibility – Conditions – Inadmissibility of an action for annulment of the Community measure)
Opinion of Advocate General Kokott delivered on 26 October 2006
Judgment of the Court (Second Chamber), 8 March 2007
Summary of the Judgment
1. Plea of illegality – Preliminary in nature – Legality of provisions of a regulation concerning isoglucose production quotas challenged before the national court
(Arts 230 EC and 241 EC)
2. Agriculture – Common organisation of the markets – Sugar – Isoglucose – Production quotas
(Council Regulation No 1111/77, as amended by Regulation No 387/81, Art. 9(1); Commission Regulation No 1471/77, Art. 1)
1. Article 241 EC expresses a general principle of law under which an applicant must, in proceedings brought under national law against the rejection of his application, be able to plead the illegality of a Community measure on which the national decision adopted in his regard is based, and the question of the validity of that Community measure may thus be referred to the Court in proceedings for a preliminary ruling.
However, this general principle, which has the effect of ensuring that every person has or will have had the opportunity to challenge a Community measure which forms the basis of a decision adversely affecting him, does not in any way preclude a regulation from becoming definitive as against an individual in regard to whom it must be considered to be an individual decision and who could undoubtedly have sought its annulment under Article 230 EC, a fact which prevents that individual from pleading the illegality of that regulation before the national court.
In that regard, an isoglucose producer cannot be directly concerned, for the purposes of the fourth paragraph of Article 230 EC, by the allocation of basic isoglucose production quantities to the Member States as effected at Community level in the context of the common organisation of the markets in the sugar sector.
In a scheme whereunder it is for the Member States to distribute the basic production quantities allocated to them among producers, with the possibility to transfer quotas between them, each producer has its quotas directly and definitively set by decision of the Member State in which it is established.
Therefore, a producer could not undoubtedly have brought an admissible action, on the basis of Article 230 EC, to annul the contested provisions. Therefore, such a person may, in proceedings brought under national law, plead the illegality of those provisions, even though it has not brought an action for annulment of those provisions before the Community Courts within the time‑limit laid down in Article 230 EC.
(see paras 39-40, 43, 45, 47-48, operative part 1)
2. The fact that, in the provisions of the regulations on the allocation of basic isoglucose production quantities to the Member States, the Council fixed maximum isoglucose production quantities for a Member State on the basis of the initial basic quotas, without taking account of isoglucose produced in that Member State during the reference period from 1 November 1978 to 30 April 1979, as an intermediate product used in the final manufacture of other products intended for sale, cannot in itself have the consequence of rendering those provisions invalid.
The initial quotas for the period 1 July 1979 to 30 June 1980 had been set, in accordance with Article 9(1) of Regulation No 1111/77 laying down common provisions for isoglucose as amended by Regulation No 387/81, on the basis of the producers’ production as determined in the reference period, and that determination was based on the information that those undertakings themselves had transmitted to the Member States which, after taking note of them and carrying out any checks, had communicated them to the Commission in accordance with Article 1 of Regulation No 1471/77 on information from the Member States concerning isoglucose. Since the Council had decided to use those quotas as a basis, it did not have to collect that information again when it adopted the contested regulations.
(see paras 57-58, operative part 2)
JUDGMENT OF THE COURT (Second Chamber)
8 March 2007 (*)
(Common organisation of the markets in the sugar sector – Isoglucose – Determination of the basic quantities used for the allocation of production quotas – Isoglucose produced as an intermediate product – Article 24(2) of Regulation (EEC) No 1785/81 – Article 27(3) of Regulation (EC) No 2038/1999 – Article 1 of Regulation (EC) No 2073/2000 – Article 11(2) of Regulation (EC) No 1260/2001 – Article 1 of Regulation (EC) No 1745/2002 – Article 1 of Regulation (EC) No 1739/2003 – Illegality of a Community measure raised before the national court – Reference for a preliminary ruling on validity – Admissibility – Conditions – Inadmissibility of an action for annulment of the Community measure)
In Case C-441/05,
REFERENCE for a preliminary ruling under Article 234 EC, by the Cour administrative d’appel, Douai (France), made by decision of 1 December 2005, received at the Court on 12 December 2005, in the proceedings
Roquette Frères
v
Ministre de l’Agriculture, de l’Alimentation, de la Pêche et de la Ruralité,
THE COURT (Second Chamber),
composed of C.W.A. Timmermans, President of the Chamber, R. Schintgen, P. Kūris, R. Silva de Lapuerta and L. Bay Larsen (Rapporteur), Judges,
Advocate General: J. Kokott,
Registrar: M.-A. Gaudissart, Head of Unit,
having regard to the written procedure and further to the hearing on 7 September 2006,
after considering the observations submitted on behalf of:
– Roquette Frères, by N. Coutrelis, avocat,
– the French Government, by G. de Bergues and J.‑C. Niollet, acting as Agents,
– the Council of the European Union, by A. Gregorio Merino and A. Westerhof Löfflerová, acting as Agents,
– the Commission of the European Communities, by M. Nolin, acting as Agent,
after hearing the Opinion of the Advocate General at the sitting on 26 October 2006,
gives the following
Judgment
1 This reference for a preliminary ruling concerns the validity of:
– Article 24(2) of Council Regulation (EEC) No 1785/81 of 30 June 1981 on the common organisation of the markets in the sugar sector (OJ 1981 L 177, p. 4);
– Article 27(3) of Council Regulation (EC) No 2038/1999 of 13 September 1999 on the common organisation of the markets in the sugar sector (OJ 1999 L 252, p. 1);
– Article 1 of Commission Regulation (EC) No 2073/2000 of 29 September 2000 reducing, for the 2000/01 marketing year, the guaranteed quantity under the production quotas scheme for the sugar sector and the presumed maximum supply needs of sugar refineries under the preferential import arrangements (OJ 2000 L 246, p. 38);
– Article 11(2) of Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector (OJ 2001 L 178, p. 1);
– Article 1 of Commission Regulation (EC) No 1745/2002 of 30 September 2002 reducing, for the 2002/03 marketing year, the guaranteed quantity under the production quotas scheme for the sugar sector and the presumed maximum supply needs of sugar refineries under the preferential import arrangements (OJ 2002 L 263, p. 31); and
– Article 1 of Commission Regulation (EC) No 1739/2003 of 30 September 2003 reducing, for the 2003/04 marketing year, the guaranteed quantity under the production quotas for the sugar sector and the presumed maximum supply needs of sugar refineries under preferential imports (OJ 2003 L 249, p. 38).
2 The reference was made in the course of proceedings between Roquette Frères (‘Roquette’), the sole isoglucose producer established in metropolitan France, and the Ministre de l’Agriculture, de l’Alimentation, de la Pêche et de la Ruralité (Minister for Agriculture, Food, Fisheries and the Countryside) (‘the Minister’), concerning the production quotas for isoglucose allocated to Roquette under the common organisation of the markets in the sugar sector.
Legal background
Regulation (EEC) No 1111/77, as amended by Regulation (EEC) No 1293/79
3 Under Article 9 of Council Regulation (EEC) No 1111/77 of 17 May 1977 laying down common provisions for isoglucose (OJ 1977 L 134, p. 4), as amended by Council Regulation (EEC) No 1293/79 of 25 June 1979 (OJ 1979 L 162, p. 10):
‘1. A basic quota shall be allotted to each isoglucose producing undertaking established in the Community, for the period [from 1 July 1979 to 30 June 1980].
… the basic quota of each such undertaking shall be equal to twice its production as determined, under this Regulation, during the period 1 November 1978 to 30 April 1979.
2. To each undertaking having a basic quota, there shall also be allotted a maximum quota equal to its basic quota multiplied by a coefficient …
…’
4 Pursuant to Article 9(4), the basic quotas were allotted to each of the undertakings concerned by name. Annex II to Regulation No 1111/77, as amended by Regulation No 1293/79, provided that the basic quota for Roquette was set at 15 887 t expressed as dry matter.
5 As a result of an action brought by Roquette, Regulation No 1293/79 was annulled by the Court by reason of infringement of essential procedural requirements (Case 138/79 Roquette Frères v Council [1980] ECR 3333).
Regulations (EEC) No 387/81 and No 388/81
6 As a consequence of the annulment of Regulation No 1293/79 the Council adopted Regulation (EEC) No 387/81 of 10 February 1981 amending Regulation No 1111/77 (OJ 1981 L 44, p. 1), which re-established in particular the quotas scheme with retrospective effect for the period 1 July 1979 to 30 June 1980, by means of a reference to the provisions in Regulation No 1111/77.
7 Subsequently, Council Regulation (EEC) No 388/81 of 10 February 1981 amending Regulation (EEC) No 1592/80 on the application of the system of production quotas in the sugar and isoglucose sectors during the period 1 July 1980 to 30 June 1981 (OJ 1981 L 44, p. 4) extended the basic quotas scheme for the period from 1 July 1980 to 30 June 1981.
Regulation No 1785/81
8 Regulation No 1111/77 was repealed and replaced by Regulation No 1785/81. In the latter regulation the isoglucose production quotas were no longer determined for each producer by name but on a regional basis.
9 According to the 14th recital in the preamble to Regulation No 1785/81:
‘… there are good reasons for giving Member States, in the form of rules and special Community criteria, in addition to the power to allocate the quotas on the basis of … isoglucose producing undertakings, the power to amend subsequently the quotas of existing undertakings by subtracting them from a total amount which may not, however, exceed, for all the periods from 1 July 1981 to 30 June 1986, 10% of quotas laid down initially according to the criteria concerned, and to reallocate to other undertakings the quantities of quotas withdrawn …’.
10 Regulation No 1785/81 was originally applicable to the marketing years 1981/82 to 1985/86. Article 24 provided:
‘1. Member States shall, under the conditions of this Title, allocate an A quota and a B quota to … each isoglucose-producing undertaking established in their territory which … had, during the period 1 July 1980 to 30 June 1981, a basic quota as defined … by Regulation (EEC) No 1111/77 …
…
3. The A quota of each … isoglucose-producing undertaking shall be equal to the basic quota allocated to it for the period 1 July 1980 to 30 June 1981.
…
5. The B quota of each isoglucose-producing undertaking shall be equal to 23.55% of its A quota as determined in accordance with … paragraph 3 …
…’.
11 Under Article 24(2) the basic quantities for the allocation of those quotas for France (metropolitan) were set at 15 887 t (Basic Quantity A) and 4 135 t (Basic Quantity B), referring to tonnes of dry matter.
12 Finally, Article 25 of Regulation No 1785/81 permitted the transfer and reduction of A quotas and B quotas under the following conditions:
‘1. Member States may transfer A quotas and B quotas between undertakings under the conditions laid down in this Article, taking into consideration the interests of each of the parties concerned …
2. Member States may reduce the A quota and the B quota of … each isoglucose-producing undertaking situated in their territories by a total quantity not exceeding … 10% of the A quota or of the B quota …
…
3. The withdrawn quantities of A quotas and B quotas shall be allocated by the Member States to one or more other undertakings, whether or not in possession of a quota, situated in the same region within the meaning of Article 24(2) excluding the undertakings from which these quantities were withdrawn.
…’
Regulations No 2038/1999 and No 2073/2000
13 By Regulation No 2038/1999, the Council adopted a new common organisation of the markets in the sugar sector by codifying Regulation No 1785/81 which was repealed.
14 The first subparagraph of Article 26(5) of Regulation No 2038/1999 stated:
‘The guarantees for the disposal of … isoglucose … produced under quota may be reduced for one or more marketing years in order to comply with the Community’s commitments under the Agricultural Agreement concluded under Article 300(2) [EC].’
15 Article 27(1) of Regulation No 2038/1999 provided:
‘Under the conditions of this chapter, the Member States shall allocate an A and B quota … to each undertaking producing isoglucose which is established on its territory and has:
… been provided with an A and B quota during the 1994/95 marketing year
…’.
16 The basic q
